S. Hrg. 111-333
REAUTHORIZING THE USA PATRIOT ACT: ENSURING LIBERTY
=======================================================================
HEARING
before the
SUBCOMMITTEE ON ADMINISTRATIVE OVERSIGHT AND THE COURTS
of the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED ELEVENTH CONGRESS
FIRST SESSION
__________
SEPTEMBER 23, 2009
__________
Serial No. J-111-49
__________
Printed for the use of the Committee on the Judiciary
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COMMITTEE ON THE JUDICIARY
PATRICK J. LEAHY, Vermont, Chairman
HERB KOHL, Wisconsin JEFF SESSIONS, Alabama
DIANNE FEINSTEIN, California ORRIN G. HATCH, Utah
RUSSELL D. FEINGOLD, Wisconsin CHARLES E. GRASSLEY, Iowa
CHARLES E. SCHUMER, New York JON KYL, Arizona
RICHARD J. DURBIN, Illinois LINDSEY GRAHAM, South Carolina
BENJAMIN L. CARDIN, Maryland JOHN CORNYN, Texas
SHELDON WHITEHOUSE, Rhode Island TOM COBURN, Oklahoma
AMY KLOBUCHAR, Minnesota
EDWARD E. KAUFMAN, Delaware
ARLEN SPECTER, Pennsylvania
AL FRANKEN, Minnesota
Bruce A. Cohen, Chief Counsel and Staff Director
Matt Miner, Republican Chief Counsel
------
Subcommittee on Administrative Oversight and the Courts
SHELDON WHITEHOUSE, Rhode Island, Chairman
DIANNE FEINSTEIN, California JEFF SESSIONS, Alabama
RUSSELL D. FEINGOLD, Wisconsin CHARLES E. GRASSLEY, Iowa
CHARLES E. SCHUMER, New York JON KYL, Arizona
BENJAMIN L. CARDIN, Maryland LINDSEY GRAHAM, South Carolina
EDWARD E. KAUFMAN, Delaware
Sam Goodstein, Democratic Chief Counsel
Matt Miner, Republican Chief Counsel
C O N T E N T S
----------
STATEMENTS OF COMMITTEE MEMBERS
Page
Feingold, Hon. Russell D., a U.S. Senator from the State of
Wisconsin, prepared statement.................................. 79
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 1
prepared statement........................................... 113
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama.... 3
WITNESSES
Fine, Glenn, Inspector General, U.S. Department of Justice,
Washington, D.C................................................ 7
Graves, Lisa, Executive Director, Center for Media & Democracy,
Washington, D.C................................................ 36
Kris, David, Assistant Attorney General, U.S. Department of
Justice, Washington, D.C....................................... 5
Spaulding, Suzanne E., Principal, Bingham Consulting Group,
Washington, D.C................................................ 32
Wainstein, Kenneth L., Partner, O'Melveny & Myers, LLP,
Washington, D.C................................................ 34
SUBMISSIONS FOR THE RECORD
American Association of Law Libraries, Catherine Lemann,
President, Chicago, Illinois, statement........................ 49
American Civil Liberties Union, New York, New York, statement.... 51
Constitution Project, Sharon Bradford Franklin, Senior Counsel,
Washington, D.C., statement.................................... 65
Fine, Glenn, Inspector General, U.S. Department of Justice,
Washington, D.C................................................ 81
Graves, Lisa, Executive Director, Center for Media & Democracy,
Washington, D.C................................................ 97
Kris, David, Assistant Attorney General, U.S. Department of
Justice, Washington, D.C....................................... 107
Spaulding, Suzanne E., Principal, Bingham Consulting Group,
Washington, D.C................................................ 116
Wainstein, Kenneth L., Partner, O'Melveny & Myers, LLP,
Washington, D.C................................................ 133
REAUTHORIZING THE USA PATRIOT ACT: ENSURING LIBERTY
----------
WEDNESDAY, SEPTEMBER 23, 2009
U.S. Senate,
Committee on the Judiciary,
Washington, DC
The Committee met, pursuant to notice, at 10 a.m., U.S.
Senate, Committee on the Judiciary, Room 226 Dirksen Senate
Office Building, Hon. Patrick Leahy presiding.
OPENING STATEMENT OF HON. PATRICK LEAHY, A U.S. SENATOR FROM
THE STATE OF VERMONT
Chairman Leahy. Good morning, everybody. After September
11th, for many of us it still feels like yesterday, I worked to
ensure that the USA Patriot Act included oversight. I think one
of the things that as much as we were concerned about that
attack, as much as we were concerned about the fact that in
many areas we had, we the United States had missed the signs
that attack was imminent.
I wanted to make sure that if we were going to increase
information gathering powers of the government, that we would
sweep in U.S. citizens. I wanted to make sure it was
implemented appropriately. This was not a partisan attitude.
I worked with an in-house majority leader, Republican Dick
Armey, a very conservative member of the House who agreed with
me on this and we included sunsets for some of the provisions
with the greatest potential to directly affect Americans. We
wanted to make sure that after they had been used for a while,
we would be forced to look at them again because they could be
reauthorized once we did.
We debated the reauthorization of the Patriot Act for
several months in 2005 and 2006. I again worked to protect the
civil liberties and constitutional rights of Americans while
providing the government with the tools it needs to
aggressively go after those people who would harm us.
Now, unfortunately, while the reauthorization bill of 2006
had some improvements, some significant improvements, it lacked
sufficient constitutional protections against the authorities
granted the government.
I worked with Senator Specter and we were able to expand
public transparency in congressional oversight--but in the end
several important checks and balances were not included in the
final version. While I liked a lot of parts about it, I voted
against it because those checks and balances were left out.
Now we have three provisions expiring on December 31st,
2009. It appears because of all the slowdowns we will be in
session until December 31, 2009. In fact, I have already made
plans. Normally I'd be in Vermont at Christmas which is a nice
place to be, but it looks like the way the Senate schedule is
going we will be here instead.
We have another chance to get it right. The provisions
slated to expire at the end of this year include the
authorization for roving wiretaps, the Lone Wolf Measure and an
order for tangible things commonly referred to as Section 215,
the Patriot Act or the so called Library Record Provision.
In March, I sent a letter to the Attorney General
requesting the administration's views on these expiring
provisions. Again in June I reiterated that request at a
Judiciary Committee oversight hearing. I recently received a
letter from the Department of Justice urging Congress to extend
the expiring authority.
I also know the President's and the Attorney General's
emphasis on accountability and checks and balances and their
willingness to consider additional ideas. Actually that
openness is something unusual but welcome and I look forward to
exploring it.
Yesterday I introduced a bill with Senators Cardin and
Kaufman that aims to strike the kind of balance the
administration urges. It will extend the authorization--
expiring authorization of a new--it will add checks and
balances by increasing judicial review of government powers,
expand congressional oversight and public reporting on the use
of intrusive surveillance measures, and the Leahy/Cardin/
Kaufman mandates new audits by the Department of Justice Office
of Inspector General on the use of Section 215 and national
security letters.
We all appreciate the earlier audits conducted by Inspector
General Glen Fine because those led to improvements.
In developing our proposal, I have consulted with Senators
Feingold and Durbin. We introduced a more expansive bill last
week and with their encouragement I borrowed a few of the
accountability provisions from their proposals.
While it is a shared early draft of our proposal, Senator
Feinstein, Chair of the Senate Committee on Intelligence, I
look forward to working with everybody. We will turn to the
issue of our committee meeting on October 1st which is a week
from tomorrow.
I am pleased that the Attorney General is moving in the
right direction to better control assertions of the state's
secrets privileges after our efforts over the last several
years to bring oversight and accountability to the
administration's invocation of this privilege.
The administration's policies that are being announced
right now heckle the Senate legislation we have been passing.
It is being announced now and the administration leaked them
last night and actually I'm pleased with them.
The Attorney General's announcement incorporates several
concepts drawn from our State Secrets Protection Act such as
the adoption of a significant harm standard, the creation of
new internal controls, the requirement the Attorney General
personally approved, the assertion of the State Secret
privilege.
I press hard to shine a light on the misuse, there has been
a misuse to the State Secret privilege. We want the privilege
but we don't want to misuse. We have to have mechanisms to
guide this application. Today's announcement marks progress.
I will closely monitor the implementation of this new State
Secret policy. I will make sure everybody has a higher level of
accountability and transparency. I am especially concerned with
ensuring the government makes a substantial evidentiary showing
to a public judge in asserting the privilege so that the rule
of the court can be there and determine whether it should be
allowed.
I commend the Attorney General, I commend him very highly
for working with us and shaping these approved policies and
procedures. I am going to yield to Senator Sessions and then we
will go right to David Kris and Glenn Fine. Go ahead.
STATEMENT OF JEFF SESSIONS, A U.S. SENATOR FROM THE STATE OF
ALABAMA
Senator Sessions. Thank you, Mr. Chairman. Thank you for
this hearing. You have been a strong supporter of the Patriot
Act. It has been a bipartisan act. I do believe that this
committee after 9/11 fulfilled its responsibility by carefully
scrutinizing every single word in it to make sure that there
were no abuses of constitutional rights of our citizens. I
think that was achieved.
I don't believe that subsequent events have proven that
there have been any abuses of the Act to date and I think in
fact the history of the Act shows that it has been very helpful
in allowing us to go now some 8 years without having another
attack. I appreciate the work that everybody put into this when
you were either Chairman and ranking member I guess throughout
the whole process. Chairman, I suppose.
Chairman Leahy. Both.
Senator Sessions. Both I guess.
Chairman Leahy. Of the two I will tell you later which I
enjoyed more.
Senator Sessions. The provisions of this Act did not create
new or unusual powers for the Federal Government. Rather, the
Act extended to our National Security Agency the same tools
essentially that had long been available to domestic law
enforcement that I used as a Federal prosecutor.
In the fight against terrorists, it is only fair and common
sense and reasonable that we have at our disposal abilities
that have existed for decades to pursue drug dealers and
mobsters.
When this Act was passed in 2001 and then reauthorized in
2005, some were concerned that significant violations of civil
liberties would result. Some were concerned that libraries
would be abused. Well, we have closely examined the performance
of our law enforcement agencies under the Act and we can safely
say those fears did not materialize.
Our national security and law enforcement agencies have
made responsible use of these tools and at the same time
continued to protect the safety of the American people.
Three of these essential tools are up for reauthorization.
We have the roving wire taps, the business records provision
Section 215 and the Lone Wolf section of the Intelligence
Reform Act that the Chairman mentioned.
It is important to say at the outset that the
administration is requesting that the provisions be renewed.
The Assistant Attorney General has written the Chairman that
the DOJ has discussed these provisions with the Director of
National Intelligence. They are unequivocal about the
administration's position that we are still at war with Al
Queda and that these provisions should be reauthorized because
they are important tools in this war and to make America safe.
The roving wire tap is a provision that prevents terrorists
from evading surveillance. Before September 11, 2001, a target
could just switch phones several times and the National
Security Agency would have to obtain a new court order to have
a wire tap on each one of those phones. As a matter of fact,
criminals today use phones regularly and they throw them away.
Narcotics and organized crime prosecutors can apply for and
are able to apply for roving wire taps so that their agencies
could monitor criminals bent on avoiding detection. That was
passed in 1986. It allowed that in drug cases.
The provision of the Patriot Act grants terrorist hunters
the same tools to catch a savvy terrorist as law enforcement
has been using to capture criminals.
FBI Director Muller appeared before us last week and
testified since the roving wire tap was authorized, it has been
used approximately 140 times. He described this as tremendously
important. It is essential given the technology and growth of
technology that we have had.
The Business Records Provision Section 215 feels the gap in
national security intelligence gathering and according to the
Department of Justice has proven valuable in a number of
contexts. It permits the authorities to seek permission from
courts, go to court to gain access to business records that can
help ``connect the dots'' in tracking terrorists and foreign
agents.
When the Act was passed in 2001 and reauthorized in 2005,
some feared it would be abused. Well, now we have several years
of tracking this and no such incident has occurred. This
provision simply extends to national security agents the same
abilities basically possessed by any Federal prosecutor.
In investigating ordinary crime, a prosecutor can issue a
Grand Jury subpoena which orders the production of all sorts of
business records and documents. In fact, ordinary Grand Jury
subpoenas are not as regulated as this because they do not need
to be approved by a judge as these types of orders are.
As Director Muller told us, these orders have been used
about 250 times and ``the records that are received are
absolutely essential to identifying other persons who may be
involved in terrorist activities.''
The Lone Wolf section of the Act is a common sense
provision that we need to continue the fight against terrorism
in the 21st Century even though it has not even been used one
time yet; it is there to defend against a very real
possibility.
A rogue terrorist may not be linked to a terrorist group.
Or if he is, he may not be proven to be linked. In the past,
the law required that the National Security Agency show a
connection between a terrorist and a terror group or a foreign
national power in order to monitor them. This meant that if a
terrorist or a foreign agent left a terror group, abandoned
them, perhaps because of a dispute, we would not be able to
track him until he joined some other group.
As our armed forces fight and succeed against terror
groups, we will inevitably splinter them, perhaps causing some
to strike out on their own, or some will self-radicalize,
gaining fame from the internet.
The statutory language of this provision is narrow and
guarantees that it will not be abused and--the provision stands
waiting to be used and has never been used.
The DOJ notes, ``we believe that it is essential to have
the tool available for the rare situation in which it is
necessary rather than to delay surveillance of a terrorist in
the hopes that necessary links could be established.''
So I believe that Congress and the President work together
very well to pass this Act in 2001 and reauthorize it in 2005.
Chairman Leahy is a strong believer in civil liberties. You
monitored the Act very, very carefully before you lent your
support to it. I think it has proven to be valuable and proven
not to have been abused. I think it should be reauthorized
without any weakening of it. Thank you, Mr. Chairman.
Chairman Leahy. Thank you very much. Our first witness is
David Kris, who currently serves as the Assistant Attorney
General for National Security.
Earlier in his career he worked for 8 years as a Federal
prosecutor in the Criminal Division. Certainly the ranking
member and I are always delighted to see prosecutors here.
He served as Associate Deputy Attorney General and in 2003
supervised the government's use of the Intelligence
Surveillance Act.
Now Mr. Kris, as you know, some of us in this committee
worked very hard to ensure your confirmation to a vital
position within the administration. None of the policies being
announced today by the Attorney General with regard to
government claims the State Secret privilege, you are going to
have a very critical role to play. We are going to be looking
for you to fulfill that role in the new policy by ensuring
against misuse and overuse--the State Secret, but also I think
by making sure the proper role of the court is respected.
So Mr. Kris, Assistant Attorney General Kris, please go
ahead, sir.
STATEMENT OF DAVID KRIS, ASSISTANT ATTORNEY GENERAL,
WASHINGTON, DC
Mr. Kris. Thank you, Chairman Leahy, Senator Sessions and
members of the committee, thank you for inviting me to testify
today.
As you know from my written submission in the letter that
we sent on September 14th, we favor reauthorization of the
three sunsetting provisions in the USA Patriot Act and we are
open to working with Congress on those provisions.
We have seen recent draft legislation from Senator Leahy,
Senator Feingold and others and we are reviewing those drafts
now. Of course we don't have a position on them at this time.
Let me just walk through each of the three provisions
quickly. The first is the roving surveillance provision. As you
know, this was enacted in 2001 to correspond to preexisting
authority that applies to law enforcement surveillance. I want
to make two basic points about this roving surveillance
provision.
The first is that we can obtain roving surveillance
authority from the court only when we can show to a judge that
the actions of the surveillance target, the person or entity
from or about whom we are seeking information may have the
effect of thwarting our ability to conduct the surveillance
with the aid of a specific third party like a
telecommunications provider. So we have to show this thwarting
effect first.
Let me try to explain how that thwarting effect can occur.
In an ordinary FISA surveillance case, the government shows
probable cause to the judge of two basic facts. First that the
target is a foreign power or an agent of a foreign power, and
those terms are defined in great detail in the statute.
Second, that the target is using or about to use a
particular facility like a 10 digit telephone number or
something like that.
For its part then the court issues two orders. First, a
primary order to the government that says yes, you are
authorized to do this surveillance, and then what is called a
secondary order directed to the particular telecommunications
provider or other third party and that secondary order says you
should help the government effectuate the surveillance. The
phone company needs to help us do the surveillance on the
particular phone number.
If in an ordinary FISA case, the target switches carriers
from one provider to another, the new provider will not honor a
secondary order that was directed only at the old provider. You
wouldn't want it any other way. You wouldn't want phone company
number 2 to start honoring orders that are directed at phone
company number 1.
So that is where the thwarting can occur because we have to
go back to court, file a new pleading and get a new order. That
creates a gap in our coverage.
In a roving case we avoid that problem because we get in
effect a generic secondary order that can be served on any
provider so that we can follow the target from provider to
provider if he jumps around.
That is the first point I wanted to make about this
provision. The second point which comes at the back end of
roving and is equally important and that is whenever we
implement this roving authority, we must report to the court,
to the FISA court normally within 10 days of the probable cause
that ties the target to the new facility that he has roamed to.
That if you think about it makes sense because the main thing
that changes in a roving surveillance case, in effect really
the only thing that typically changes is the new facility.
The target is the same target. The probable cause that the
target is an agent of a foreign power is the same probable
cause. So the statute I think wisely and correctly focuses on
what is new and that is the probable cause linking the target
to this new facility. So that is the way the architecture of
the statute works and that is essentially why we think it
should be renewed.
I should also add that I'm not aware of any major
compliance problems with the implementation of the roving
authority since its inception in 2001.
Briefly with respect to the Lone Wolf provision which is
the second of the three, this provision has never been used.
Again, I have sort of two quick points. The first is as to its
scope. This is a provision that applies only to non-US persons,
not to US citizens, not to green card holders, and only when
they themselves engage in or prepare to engage in international
terrorism.
The provision is designed basically to address the
possibility of the situations that Senator Sessions described.
A person who self-radicalizes and engages in this international
terrorism without being a member of any group or a person who
was a member but then breaks with a group and then goes off on
his own as a kind of free agent.
If that kind of case arises, we would have difficulty
establishing or maintaining our coverage without the Lone Wolf
provision. That is the idea behind it.
Third and finally the business records provision Section
215 of the Patriot Act. In general, this provision is used when
three circumstances exist. First, the information sought can't
be obtained by a national security letter. National security
letters exist for specific types of information in specific
situations.
Second, a Grand Jury subpoena would not be sufficiently
secure secret, and third, the provider either can't or won't
turn it over voluntarily. So with that, I will stop and I look
forward to answering your questions. Thank you.
Chairman Leahy. Thank you very much. I am holding the
National Security Investigations and Prosecutions which you co-
authored with Douglas Wilson. So if there is anything you
disagree with what you have in there, be prepared.
Glenn Fine is well known of course as the committee he
served as the Department of Justice Inspector General since
2000. He has been a member of the Office of the Inspector
General since 1995.
His office conducted comprehensive audits of Section 215 of
the Patriot Act of the use of national security letters. These
audits which are combined with a number of other reports issued
by his office represented really the largest portion of the
public reporting on the use of surveillance authorities.
Mr. Fine, glad to have you here. Go ahead, please.
STATEMENT OF GLENN FINE, INSPECTOR GENERAL, WASHINGTON, DC
Mr. Fine. Mr. Chairman, ranking member Sessions, members of
the committee, thank you for inviting me to testify about the
Office of the Inspector General's work related to the Patriot
Act.
Our most significant reviews have focused on the FBI's use
of national security letters and Section 215 orders. Pursuant
to the Patriot Reauthorization Act, in March, 2007 and March,
2008, we issued reports examining the FBI's use of these two
authorities and I will focus my testimony on our findings from
those reviews.
First, with regard to the use of national security letters,
NSLs. Our reports recognize the major organizational changes
the FBI was undergoing in this counter terrorism and counter
intelligence efforts during this period.
Nevertheless, our reports found that the FBI had engaged in
serious misuse of NSLs. For example, we found that the FBI had
issued many NSLs without proper authorization and had made
improper requests under the statutes cited in the NSLs. Most
troubling, we identified more than 700 instances in which the
FBI improperly obtained telephone toll billing records by
issuing so called exigent letters.
These letters stated that they were being issued due to
exigent circumstances and that the FBI was in the process of
obtaining subpoenas for the requested information.
In fact, we found that many of these letters were not
issued in exigent circumstances and that subpoenas had in many
instances not been submitted to the U.S. attorney's offices as
represented in the letters.
As a result of our findings, the FBI has ended its
practices of using exigent letters and the OIG is now in the
final stages of completing a review, examining who is
accountable for the misuse of these letters.
In total, the OIG's two reports on national security
letters made 27 recommendations to the FBI to ensure that it
uses NSLs in accordance with the requirements of law,
department guidelines and internal FBI policy. We believe that
the FBI has taken these recommendations seriously and has
devoted substantial time and resources to implementing them.
For example, the FBI created an Office of Integrity and
Compliance to identify risk areas in FBI programs. However, we
have some concerns about the staffing of this office and we
also do not believe that this office should be looked to as the
primary oversight mechanism to ensure that the FBI uses NSLs
properly.
Because of the emphasis the FBI has placed on this office,
the OIG intends to initiate a separate review to assess in
detail the work of the office. In addition, in response to our
reports, the department established a national security letter
working group to develop minimization procedures regarding
acquisition, dissemination and retention of information
obtained from NSLs. Yet while this group has drafted proposed
recommendations, these recommendations have not yet been
finalized even though it has been more than 2 years since our
first NSL report was issued.
We believe the department should complete its review of the
working group's proposals and promptly issue final minimization
procedures for NSLs.
With regard to the use of Section 215 orders, the OIG
examined and issued two reports on the FBI's use of these
orders to obtain business records. While used much less
frequently than NSLs, the FBI believes that the Section 215
authority is essential to national security investigations
because it is the only compulsory process for certain kinds of
records.
Our reviews did not identify any illegal use of Section 215
orders. However, a second report does discuss a case in which
the FISA court twice refused to authorize a Section 215 order
based on concerns that the investigation was premised on
protected First Amendment activity.
The FBI subsequently issued NSLs to obtain information
about the same subject based on the same factual predicate even
though the NSL statute contains the same First Amendment caveat
as the Section 215 statute.
My written statement also describes other reviews within
the FBI that while not directly involving Patriot Act
authorities, relate to FBI programs and functions that can
impact its ability to perform its vital mission.
In conclusion, we found that the FBI did not initially take
seriously enough its responsibility to ensure that Patriot Act
authorities such as national security letters were used in the
court with the law, Attorney General guidelines and FBI
policies.
Since issuance of our reports, however, we believe that the
FBI has devoted significant effort to correcting its misuse of
these authorities. Yet we believe this is an ongoing process
and is too early to conclude definitively that the FBIs efforts
have fully and finally eliminated all the problems we found.
We also believe that as Congress considers reauthorizing
provisions of the Patriot Act, it must ensure through continual
and aggressive oversight mechanism that the FBI uses these
investigative authorities appropriately.
We recognize that the OIG has an important role to play in
this oversight process and we intend to continue our reviews of
the FBI's use of these authorities.
That concludes my testimony and I would be pleased to
answer any questions.
Chairman Leahy. Thank you very much, Mr. Fine. The bill I
introduced this week, the USA Patriot Act Sunset Extension Act
has a 4-year sunset in all the three expiring Patriot Act
provisions similar to what we did in 2001 and again in 2005/06
reauthorization.
But it also has a new 4-year sunset on the use of national
security letters. These are the letters that allow the
government to obtain bank records and credit card statements,
medical records and other personal information all without a
warrant.
Given the misuse of the NSL authority that was seen in the
Inspector General's 2007 report, I thought it was time to take
another look at the authority. So I introduced the USA Patriot
Act after September 11th. I said because I thought we needed
these aggressive tools and I was glad to do it.
But given that these authorities allow the government to
collect so much information about Americans, is it the
administration's position, do they agree with me that it is
only reasonable to have a sunset on these authorities because
it would force us to periodically look at them and see how they
are being used?
Mr. Kris.
Mr. Kris. Senator, thank you. Obviously as I mentioned, we
don't have an official administration position on that element
of your bill or the others. It is certainly something we can
think about and discuss and work with the committee.
Chairman Leahy. Let me ask Mr. Fine.
Mr. Fine. Well, I don't speak for the administration here.
I do think it's important to ensure that there is aggressive
oversight of this, that it be continually looked at. Our audits
did expose problems in NSLs and it is important to continue
that review.
Chairman Leahy. Let me put it this way. Has it been your
experience that there is more oversight at the time when sunset
provisions are about to kick in?
Mr. Fine. There is more scrutiny of the issues as evidenced
by this hearing. That's clear.
Chairman Leahy. Now, Section 215, the business records
orders has an incredibly expansive authority. As long as the
government meets the simple relevancy standards of things
sought pertaining to a specific kind of intelligence along
investigation, the FISA court can allow them to take not just
business records, but any thing. That means not just library
records but the lawful purchase of firearms, something of some
concern in my own state of Vermont, your own personal medical
records of some concern to all of us, your computer, any
tangible thing at all even if it meant it closed down your
small business.
The government is almost always guaranteed success because
current law confers a presumption of relevance to the
government's claim that what it is seeking is relevant to the
investigation.
It is quite an advantage to the government. You are a small
business and somebody comes in and just swoops up and takes out
all your computers and you are effectively closed down. Then
you say well, there is a presumption of relevance.
I would think as technology advances and more and more
personal information is available, isn't it reasonable to
require the government to have to at least prove the things
that it is seeking are relevant in terrorism investigation and
connect it to at least a suspected terrorist before they are
allowed to go into all this huge amount of private material?
Mr. Kris.
Mr. Kris. The statute requires the statement of fact
showing that there are reasonable grounds to believe that the
tangible things sought are relevant.
Chairman Leahy. But there is automatically a presumption.
Mr. Kris. No, I understand that there is a presumption if
the materials pertain to a foreign power or an agent of a
foreign power or the activities of the agent of a foreign
power. In certain categories there is a presumption, but
nonetheless, there does have to be a statement and then a
showing of relevance.
If you think about how this kind of authority is used and
the stage at which it is used. It is used at an early stage
often of an investigation to gather documents not after
probable cause has been established, but in order to establish
probable cause or in order to weed out people who really don't
belong in the investigation.
Chairman Leahy. It is ordinarily expansive. If you have
somebody in there who just wants to do it because they don't
like somebody for example, on business, they could close down
the business. If they wanted to do a fishing expedition in
hospital records, everybody's records, yours, mine, everybody
else's, they can do that and they are given a presumption of
relevance.
Mr. Fine. Well, obviously there is here a provision that
prohibits the use of this against someone based solely on their
exercise of First Amendment rights, so some of these cases
where you posit some very bad hypotheticals would be just flat
out prohibited by the statute. I should also say that----
Chairman Leahy. I wasn't speaking about First Amendment
matters.
Mr. Fine. And I should also say that the recipient of a 215
order who may not always be the person whose records are in
play has a right to bring an action in the FISA court. That
hasn't happened. I think that may be an indication of how the
recipient----
Chairman Leahy. How do they bring it? They have to overcome
presumptions. I mean, the cards are rather stacked.
Mr. Fine. I mean, I don't disagree with you insofar as the
relevance standard with or without the presumption is not a
very high standard. It isn't a probable cause standard or proof
beyond a reasonable doubt or anything of the sort.
I think that reflects the fact of how this investigative
tool is used and indeed on the criminal side, if you think
about the standard that applies to a Grand Jury subpoena under
the R. Enterprises case, the Grand Jury has enormous authority
without a judge signing off on the subpoenas to collect a lot
of information under a very low standard as well and that is
just the way investigative tools are structured.
Chairman Leahy. You and I are going to be talking about
this.
Mr. Fine. I look forward to that.
Chairman Leahy. Also the bill I introduced with Senators
Cardin and Kaufman include new audits on Section 215 orders for
tangible things in the use of national security letters--trace
devices.
Given the letter's favorable language to us, the letter you
sent to me on reauthorization, speaking about congressional
oversight, do you support the audits in the bill?
Mr. Fine. As I said, we don't have a position on anything
particular yet. I do want to say, though----
Chairman Leahy. I mean, your letter says you support
oversight. Are you saying that you support oversight but you
can't take a position on oversight?
Mr. Fine. I mean, I'm not in a position to announce an
administration position on any particular aspect of your bill.
The bill obviously was dropped fairly recently. We are looking
at it now actively and we are interested in working with the
committee and with you and others to try and see if these tools
can be sharpened.
Chairman Leahy. On these audits, would you get back to me
as quickly as possible?
Mr. Fine. Yes.
Chairman Leahy. Thank you. Senator Sessions.
Senator Sessions. Thank you. Mr. Kris, isn't it true that a
Federal drug enforcement agent who is investigating a drug
organization can issue administrative subpoenas without a court
or a Grand Jury oversight and obtain telephone toll records or
motel records or even bank record relating to that
investigation?
Mr. Kris. Yes, there are a number of administrative
subpoenas including in the drug arena and other areas that
operate as you----
Senator Sessions. Well, how about an IRS agent who is
investigating tax fraud? Can they get your bank records and
your telephone toll records?
Mr. Kris. Yes. Under certain circumstances they can, and
you are right, there is an array of circumstances.
Senator Sessions. Isn't it true that the national security
letters really have more oversight and more requirements on
them perhaps than the administrative subpoenas that other
Federal agencies have been using for many, many decades?
Mr. Kris. It is certainly true that a 215 order has more
process associated with it than these criminal side collection
authorities because a 215 order is issued by a judge based on
an application made by the government in advance of the
issuance of the order and the production of the tangible
things.
The authorities that you were just reciting on the criminal
side including the Grand Jury subpoena don't require advanced
judicial approval.
Senator Sessions. Now, just for our members and those that
might be interested, documents in the possession of a bank or a
telephone company are not in the possession of the defendant.
That is a third party.
Hasn't it been true that the court has always recognized as
a different standard in the burden of proof when you obtain
information from a third party than getting it out of your desk
drawer or coming out of your pocket or your automobile where
you have personal control over it?
Mr. Kris. I mean, that is certainly correct both with
respect to the Fourth Amendment and in some cases under active
production to the Fifth Amendment. When you give information to
a third party, the Fourth Amendment calculus changes under the
Miller decision from the Supreme Court.
Senator Sessions. Because essentially the telephone toll
records or the bank records are in possession of somebody else.
Everybody at the bank, everybody at the phone company has
access to those records. You have a diminished expectation of
privacy in records held by other institutions than held by
yourself.
Now, with regard to the roving wire taps, isn't it true
that you still have to have and you still have to go through
the very significant process to obtain a warrant to have that
approved by a Federal judge and they have to set forth
extensive factual predicates to justify the court issuing that
warrant and it is quite extensive and quite a major operation
to get a Federal tap on a telephone whether it is one phone or
a roving phone.
Mr. Kris. I mean, both under Title 3, the Criminal Wire
Tapping Statute and under FISA, there are lengthy applications
that are prepared on the FISA side by attorneys in my office. I
signed some of those, so yes, they are extensive. They have to
make a showing of probable cause that we make in every case.
When we want to seek roving authority, we have to make an
additional showing about the actions of the target thwarting or
having a possibility of thwarting the surveillance.
Senator Sessions. And there has been no lasting of that in
national security cases that you would have in a mafia case, an
organized crime case, a case of that nature.
Mr. Kris. I mean, the statute is different under FISA than
it is under Title 3 on the criminal side. But the probable
cause requirements that have been in FISA since 1978 have not
been watered down.
Senator Sessions. It seems to me that is the fundamental
protection that every American has is that before you can
listen in on your phone conversation, you have to have probable
cause that a crime is underway, that this person is involved
with it and this telephone or a telephone may be utilized in
the furtherance of it, isn't that right?
Mr. Kris. On the criminal side, yes, you would make a
showing of a specific crime. Not every crime will do. They have
to have several listed in 2516 of Title 18 and then the
facility the phone would say is being used in connection with
that crime.
Senator Sessions. Well, Mr. Fine, you wouldn't dispute the
thousands and thousands of administrative subpoenas issued by
the IRS to find out if we paid our taxes or DEA investigating
drugs, would you? You acknowledge that?
Mr. Fine. I acknowledge that, yes.
Senator Sessions. Well, let me ask you this, Mr. Fine. With
regard to the complaints you raised initially, you have
indicated still the FBI has not gotten its act totally together
which I am not happy with. I think they should respond and
follow these rules as strictly as they possibly can. But the
national security letters are not in essence much different
than the administrative subpoenas issued by other Federal
agencies, are they? For the most part, the ones that are issued
most often.
Mr. Fine. They are similar but the are broader. There is
more of them. They are issued in more contexts and we found in
our particular scrutiny of this that they were not used
properly and that they had not followed their own policies,
that they were used sometimes in excess of the statutes.
Senator Sessions. Have you issued your final report on
that?
Mr. Fine. Well, this is our March, 2007 and March, 2008
reports on national security letters, yes.
Senator Sessions. Have we seen that report?
Mr. Fine. Yes.
Senator Sessions. Well, to what extent have your recent
evaluations discovered that the FBI is still not following
proper procedures?
Mr. Fine. We issued these reports in March, 2007 and in
March, 2008 we issued a follow-up report and found that they
had taken substantial efforts. They had made significant
strides but there still needed to be more work done.
We have not issued a report since then but we have been in
contact with them and we anticipate a continuing oversight over
this matter.
Senator Sessions. Well, I think that's fine, but some of
the errors were like the agency had used a U when they should
have used a subsection B and more clerical errors that you
counted correctly as being errors, is that correct?
Mr. Fine. There were a whole range of errors. Some were
clerical errors, some were errors by the telecommunication
providers, some were errors by the agency, some were serious
errors where they were issuing NSLs in instances when they were
not proper.
Senator Sessions. Thank you.
Chairman Leahy. Thank you very much.
Senator Feinstein.
Senator Feinstein. Thank you very much, Mr. Chairman. Thank
you for the bill. Gentlemen, welcome. I'd like to put on my
other hat which is Chairman of the Intelligence Committee.
There was so much criticism after 9/11 that the
intelligence community really didn't know where an attack would
take place or was able to put together certain facts that would
lead to an arrest that would prevent an attack. So since that
time we have seen a greatly developed intelligence community
aimed at protecting the homeland which I very much appreciate.
We are in the process of a major intelligence investigation
in both New York and Colorado. I happen to believe it is a real
investigation and I know that the FBI has enormous resources
expended in this investigation.
Mr. Kris, I would like to begin with this question. Is
there anything in this bill that would impede or affect the
present investigation?
Mr. Kris. Senator, thank you for that question. I think the
best answer to that is that that is something that would
properly be discussed in a classified setting and I think we
would be happy to do that.
Obviously we are not going to discuss classified matters
here, and also there is this Justice Department policy about
commenting on ongoing investigations. So I think for both of
those reasons, that will be deferred to a different setting,
but I appreciate the question.
Senator Feinstein. Well, then clearly your answer is not
no, so I think we ought to have that----
Chairman Leahy. I think in fairness to Mr. Kris, his answer
is what his answer was.
Senator Feinstein. All right. Well, thank you very much but
I am free to interpret it however I might choose to and I
certainly think we should have that classified session.
Can you describe what types of information would be
included in a statement of fact? I am now talking about the NSL
provisions of this bill. How much detail would have to be in
the statement of facts in order to prove relevancy?
Mr. Kris. Do you mean under Senator Leahy's bill?
Senator Feinstein. That's correct.
Mr. Kris. I want to be very cautious about commenting on it
because we just haven't worked all the way through the bill to
figure out what it would actually mean. It is complicated
stuff, as you know.
If we are changing the standard in a significant way, then
it will by definition, and I think it is designed to, have an
effect on the way the authorities are used and that is a
question of striking a balance as to how much authority you
want to give. But we haven't as an administration yet worked
through at that level of detail exactly what the implications
would be here.
Senator Feinstein. So could you answer the question? Would
the information in a statement of facts be classified? And if
so, how would private sector companies be expected to handle
that information?
Mr. Kris. I'm not sure I understand, Senator. There is a
provision I think I have read that would require us to explain
to private sector entities, telecom providers or others exactly
what our basis is. That would be a change I think in current
law. Again, we are still trying to work through that and figure
out how it would work, so I don't want to announce or take a
position on it. I think I understand that is what you are
referring to. That would be a change.
Senator Feinstein. The Leahy bill would add a requirement
for the statement of fact which would show reasonable grounds
to believe that the information sought is at least relevant to
an authorized investigation. Would you have a problem with
that?
Mr. Kris. Again, I think that's a position we would like to
work through in an orderly fashion and then deliver to the
committee once we have done that homework. I apologize that I'm
not in a position to announce an administration position here.
Senator Feinstein. OK. You laid out certain tangible things
sought under the business records section as presumptively
relevant if the government shows that they pertain to a foreign
power, an agent of a foreign power, the activities of a
suspected agent of a foreign power who is the subject of an
authorized investigation or an individual in contact with or
known to an agent of a foreign power who is the subject of such
investigation.
The bill as I understand it removes the presumption of
relevance described above and it requires the government to
show relevance. Can you describe how the government would be
expected to show relevance? Would this also require a statement
of fact to a court? And how much detail would be required?
Mr. Kris. I will answer that question carefully so that I
don't get into anything classified or operational. But yes, I
mean, the statute currently requires a statement of facts
showing that there are reasonable grounds to believe that the
tangible things sought are relevant.
So today we are making a statement of fact to a judge. We
would be aided by the presumption that you just described if
the conditions of that presumption are satisfied, if that
presumption is eliminated then we won't have that benefit of
the presumption. We are still going to be making a statement of
fact.
What that would be would vary from case to case as you can
imagine. But when you are making a statement of fact in support
of a showing of relevance, you are trying to show the judge why
it is that this information that you are seeking pertains to or
is important to the investigation that you are undertaking.
Senator Feinstein. So you do not see this as slowing down
an investigation? It could be done in a very timely way?
Mr. Kris. Well, under 215, obviously Mr. Fine has written
extensively about the delays associated with the use of 215 in
the past. I think we have made improvements on making it
faster. When you change the bill, if you change the law, it may
have an effect. We just haven't sort of worked through in every
detail exactly what those changes would mean operationally yet.
Senator Feinstein. Thank you very much.
Chairman Leahy. Thank you, Senator.
Senator Feingold.
Senator Feingold. Thanks, Mr. Chairman. I'm glad the
committee is moving forward on Patriot Act reauthorization. I
introduced legislation along with Senator Durbin and eight
other senators that takes a comprehensive approach to fixing
the USA Patriot Act and the FISA Amendments Act.
It permits the government to conduct necessary surveillance
but within a framework of accountability and oversight. I
understand as you indicated, Mr. Chairman, of course that you
have also introduced legislation. I look forward to working
with you closely on these issues.
I have a full statement that I ask be placed in the record.
Chairman Leahy. Without objection.
Senator Feingold. Thank you, Mr. Chairman. I also ask that
letters in support of the Justice Act bill that we have
introduced be placed in the hearing record as well.
Chairman Leahy. Without objection.
Senator Feingold. Mr. Kris, let me start by reiterating
something you and I talked about previously, and that is my
concern that critical information about the implementation of
the Patriot Act has not been made public. Information that I
believe would have a significant impact on the debate.
I urge you to move expeditiously on the request that I and
others in this committee have made before the legislative
process is over.
Now, in Suzanne Spaulding's testimony for the next panel,
she argues that additional safeguards are needed in the context
of intelligence investigations because of the very broad scope
of intelligence investigation. The secrecy with which they must
be conducted and the fact that they often do not lead to
prosecution. That is, we have to take into account that
safeguards inherent to criminal investigations are simply not
always present in the context of intelligence investigations.
Mr. Kris, do you agree that additional vigilance is needed
in the context of intelligence investigations?
Mr. Kris. Yes.
Senator Feingold. And in fact isn't that what was
demonstrated at least in part by the IG reports on national
security letters?
Mr. Kris. Well, I think the problems that Mr. Fine found
are significant. I think they have been remedied. I'm not sure
that those are inherent in an intelligence use of NSLs, but, I
mean certainly they are significant and they warrant attention
and I think they have gotten a lot of attention.
Senator Feingold. Mr. Fine, would you agree that the lack
of safeguards contributed to the misuse of NSLs?
Mr. Fine. I think to some extent the fact that they were
not transparent does produce an environment where there needs
to be more significant vigilance.
Senator Feingold. Mr. Kris, as you know, the Patriot Act
provided statutory authority for the government to obtain that
special sneak and peak, criminal search warrants that allow
agents to break into American homes and conduct secret searches
without telling them for weeks, months or even longer.
It is true, isn't it, that these searches can be conducted
also in run of the mill criminal cases and do not require any
connection to terrorism?
Mr. Kris. That's true, both before and----
Senator Feingold. In fact, according to a July, 2009 report
of the Administrative US courts, isn't that exactly how this
authority has most recently been used?
The report shows that in fiscal year 2008, sneak and peak
search warrants were requested 763 times but only three of
those initial requests, just three, were in terrorism cases?
The vast majority were for drug cases.
Now, is that your understanding of that report and does it
concern you at all?
Mr. Kris. It is my understanding and I want to say thank
you to your staff who alerted me and allowed me to read the
report in advance of this hearing. It does say here that 65
percent of the, these are criminal sneak and peak were in drug
cases.
Obviously just to make something clear which I know you
understand, but on the FISA side, the searches that we do
pursuant to FISA are not exactly sneak and peak. They are
generally covert altogether. So this authority here on the
sneak and peak side on the criminal side is not meant for
intelligence, it is for criminal cases.
I guess it is not surprising to me that it applies in drug
cases.
Senator Feingold. As I recall, it was in something called
the USA Patriot Act which was passed in a rush after an attack
on 9/11 that had to do with terrorism. It didn't have to do
with regular run of the mill criminal cases.
Let me tell you why I'm concerned about these numbers. That
is not how this was sold to the American people. It was sold as
stated on DOJ's website in 2005 as being necessary `to conduct
investigations without tipping off terrorists.'
I'm going to say it is quite extraordinary to grant
government agents the statutory authority to secretly break
into American's homes in criminal cases and I think some
Americans might be concerned that it has been used hundreds of
times in just a single year in non-terrorism cases and that is
why I am proposing the additional safeguards to make sure that
this authority is available where necessary but not in
virtually every criminal case and also to shorten the time
period for notification.
Mr. Kris. Well, I don't mean to quibble with you. I do want
to just point out one thing which is before, and I was trying
to carve out FISA, just to clarify that FISA is a different
authority where it is covert, and also it puts, if I am correct
on this, I believe two Courts of Appeals prior to the Patriot
Act had authorizes sneak and peak under existing law. This was
meant to be a codification of that doctrine.
Senator Feingold. Some courts permitted secret searches in
limited circumstances before the Patriot Act as I remember, but
they also recognize the need for notice unless a reason to
continue to delay notice and it was demonstrated and they
specifically said that notice had to occur within 7 days which
is what we fought for at the time of the Patriot Act which is
what our bill proposes.
So I think you make a fair point that it was allowed to
some extent. But without these protections, this is a dramatic
change in our general criminal law that doesn't necessarily
relate to terrorism. Thank you, Mr. Chairman.
Chairman Leahy. Do you want to respond to that, Mr. Kris.
Mr. Kris. Well, I was just going to sort of support Senator
Feingold's conclusion by saying that this report says the
periods of delay range from 3 days to 365 days with 90 days
being the most common period. So just based on the report you
provided.
Chairman Leahy. Thank you. Senator Durbin.
Senator Durbin. Thanks, Mr. Chairman. My first run-in with
librarians was at a very early age when they were infringing on
my personal liberties in the East St. Louis Public Library in
telling me to shut up and now librarians have taken a different
role when it comes to individual rights and liberties on the
national stage.
It has become very vocal in considering the impact of some
of our conversation on the privacy of individuals who use
libraries. It led to former Attorney General Ashcroft
characterizing librarians as hysterics and he went on to say
that the Department of Justice has neither the staffing, the
time nor the inclination to monitor the reading habits of
Americans. Former Attorney General Gonzales said something
along the same lines.
In your testimony, Mr. Kris, about Section 215, you said it
has not been used to `collect sensitive personal information on
constitutionally protected activities such as the use of public
libraries.'
However, we do know that under the previous administration,
the Justice Department issued national security letters for the
library records of innocent Americans. Isn't that true?
Mr. Kris. Actually, I won't dispute you on that, but I
don't have a specific recollection of that.
Senator Durbin. I think it is accurate. What I would like
to ask is what is the Justice Department's current policy on
using national security letters on libraries?
Mr. Kris. Well, as you know, Section, now are you talking
about national security letters or 215? Because national
security letters unless I'm having a moment here, don't get
sent to libraries. It is, you know, RIPA, FICRA, those are
specific financial. So I think you mean 215 orders.
Senator Durbin. There was testimony before our committee,
George Christian?
Mr. Kris. Oh, you probably meant a 2709 letter.
Senator Durbin. A librarian who received an NSL for library
records.
Mr. Kris. I understand. I'm sorry. I did have a moment
there. I'm sorry.
I mean, if it is within the ambit of statute, then I think
we might use the statute in that way and there have been cases,
I can think of an espionage case, a terrorism case and a
conventional murder case I believe in which libraries have been
used.
Section 215, which is what I mistakenly thought you were
referring to obviously expressly can apply to a library, hasn't
been used that way but could be. You wouldn't I think want to
declare a library a safe zone.
Senator Durbin. No, but in your words you called sensitive
personal information on constitutionally protected activities
such as the use of public libraries.
The Patriot Act allows the FBI to issue NSLs for sensitive
personal information on innocent Americans, not just those that
we have connected up or believe we can connect up to terrorist
activities without a demonstration of that connection.
As Mr. Fine has reported, the standard for issuing an NSL
is ``can be easily satisfied.'' For example, if an FBI field
office wanted to identify someone who used an internet terminal
at the Chicago public library, they could issue an NSL for the
internet and email records of the library including the records
of hundreds of ordinary innocent citizens.
Now, we are talking about changing that for obvious reasons
since as you characterize it and I agree, we are dealing with
constitutionally protected activity.
Would you agree that under current law, the Justice
Department cannot guarantee innocent Americans that their
library records, their activities, internet terminals and
libraries for example are safe when the law allows the FBI
agents to obtain these records without the approval of the
Department of Justice and without any connection to a suspected
terrorist act?
Mr. Kris. Well, I wouldn't put it the way you just put it,
Senator Durbin, but I take your basic point which is that there
are statutes that allow this. Also on the criminal side, you
know, Grand Jury subpoenas could be directed at libraries and
have been. So the nature of an investigation at that stage is
that the government has to sweep more broadly than just the
individual who may end up being the defendant or identified as
a terrorist precisely because they are trying to develop the
case.
So that is how I think I would put it. Not quite the way
you put it.
Senator Durbin. And this is how our debate comes down. When
you take the concept of minimization which basically says yes,
keep us safe but don't sweep into your net innocent Americans
who are doing things that are ``constitutionally protected'' in
your own words.
I might also add that this reference, frequent reference
here at the committee to the use of Grand Jury subpoenas, I
hope you will acknowledge that the language that we are talking
about here under 215 when it comes to gag orders for example,
is substantially different than current language in the law
when it comes to the use of Grand Jury subpoenas. Would you
acknowledge that?
Mr. Kris. I do, and as I said in response to Senator
Feingold's questions, there are differences between ordinary
criminal investigations and intelligence investigations.
I mean, I do think that it is a legitimate policy debate to
have and we are having it in an orderly fashion.
Senator Durbin. I would just like to close by saying I
started off kind of with a negative view of librarians in my
early life, but I want to salute them.
Mr. Kris. You have come to admire them more?
Senator Durbin. I have come to admire them more and salute
them for the important role they play in this national debate.
Thank you very much. Thank you.
Chairman Leahy. Thank you. When it comes to librarians,
Senator Durbin, I would mention that one of the formative parts
of my life was in the library at the age of four in the--
Library in Mount Pilier, Vermont.
Ms. Holbrook, who was the librarian, and what she did to
urge me to read. The library is much, much larger now and has a
new wing partly paid for by some residuals from Batman movies.
There is a long story behind that which I won't go into here.
Senator Whitehouse.
Senator Whitehouse. Thank you, Chairman. I wanted to ask
you both about two issues. The roving wire tap, I understand
the need for it. I have seen the nuisance that one has to go
through to track a phone or track an individual over multiple
phones and other investigations from my prosecutor days and
obviously the 215 order has its purpose. I don't think at this
point the discussion is about whether or not to continue any of
these authorities. The question is what refinements might be
necessary.
I am concerned as I think some of the other senators and
witnesses have been about the question of the presumption that
certain things are relevant. I ask first I guess, Mr. Kris, if
you could tell me what effect a presumption has as a matter of
kind of standard law.
Mr. Kris. Right. Well, Senator, from your days as a U.S.
attorney and as a lawyer, you know a presumption is just what
it sounds like. It pushes you toward the finish line of
establishing what you need to establish.
Senator Whitehouse. But it has a particular effect, doesn't
it? Doesn't it have the particular effect of shifting the
burden of either production or persuasion in a particular
matter?
Mr. Kris. I mean, I think in an ex parte setting like this
one as opposed to in a----
Senator Whitehouse. Precisely my problem with it. If as a
matter of Horn Book law the presumption has the legal effect of
shifting the burden of persuasion or proof to another party and
you are in an ex parte proceeding where there is no other
party, I would submit to you that we are using the wrong
language and the wrong tools to work through the problem that
that is designed to solve.
Rather than continue to exist in a sort of fairyland in
which a burden shifts to an empty chair and we all pretend to
be satisfied with that set of procedures, we should maybe try
to rethink how to do that in a more logical and sensible way
that doesn't defeat what a presumption is all about in the
first place.
I'm correct that there has never once been an adverse party
that showed up in a 215 hearing. Not once.
Mr. Kris. Not to my knowledge, no.
Senator Whitehouse. And you would know.
Mr. Kris. There is a vacuum process, but not at the front
end. I guess a couple of points though in response. I think it
is a fair question.
You are a very precise and careful technical lawyer to pick
up on this. I guess two responses. The first is----
Senator Whitehouse. One of many not unheard of. I mean, it
isn't something I just invited. This is a pretty well known
problem.
Mr. Kris. I should just confine myself to answering the
question, shouldn't I? The first is in order to take advantage
of the presumption under 215, we have to show in the statement
of facts that we are submitting certain things, the three
elements that Senator Feinstein outlined before.
So one point is just this presumption doesn't come free.
You have to make a showing at the front end in order to trigger
it. So if that showing is satisfactory as a policy matter, then
the issue evaporates.
Also I think as a practical matter you could quibble with
the use of presumption here along the lines you stated. Maybe
it is more than just a quibble. But at the end of the day the
fact remains we need to establish reasonable grounds to believe
that the documents are relevant.
If we can trigger the presumption by establishing those
facts, we are most of the way home and you're right, there is
no opposing party to rebut. But the statute is still the same
in terms of ultimately requiring a showing of relevance.
Senator Whitehouse. The other question in my time remaining
has to do with the Lone Wolf provision which as has been
indicated, has never been used. There is another sort of
logical difficulty in its application in that it is hard to
imagine that the proof that an individual is an agent of a
foreign power which is one of the prerequisites for the Lone
Wolf provision would not also include proof that they are
working with shall we say a foreign power in which case it is
hard to imagine that you would need the Lone Wolf provision.
What is the difference between what is required to prove
that somebody is an agent of a foreign power? Agency implies
multiplicity. It is almost a legal impossibility to be acting
purely alone and yet be the agent in the legal sense of that
term of some other entity.
If you could walk me through that conundrum, I'd appreciate
it.
Mr. Kris. I'm going to come next time with a Horn Book. I
think this one is genuinely a labeling concern. The way the
statute was established in 1978, it defined two possible kinds
of targets. Foreign powers and agents of foreign powers with
the latter typically being an individual associated in one of
the specified ways with the former. So Osama Bin Laden being an
agent of Al Queda, Al Queda being the foreign power.
When Congress enacted the Lone Wolf provision, they said we
are going to call this individual an agent of a foreign power
because that is where it is going to fit in terms of the
headings of the statute. But obviously the whole point----
Senator Whitehouse. But he doesn't really have to be one?
Mr. Kris. That's right. I mean, the whole point of the Lone
Wolf provision is that there isn't a foreign power, there isn't
an international terrorist group as there normally would be.
Senator Whitehouse. And yet that remains a nominal
requirement for the Lone Wolf authority, doesn't it?
Mr. Kris. Well, I don't think it's a nominal requirement.
This is what I mean when I say it is really just a labeling
requirement. They are calling this person an agent of a foreign
power and so that definition which is used throughout the
statute is a convenient thing to hitch your wagon to here so
that you don't have to re-write the entire statute all the way
through. But I don't think it is meant to fool anybody or that
Congress misunderstood when they enacted it that there is some
foreign power lurking behind this guy.
There may very well be, but whether there is and we just
can't establish it or whether there is indeed no foreign power
because he is a genuine free agent I think it is clear the
statute is meant to cover that and they call him an agent of a
foreign power because it fits in with the grammar of the rest
of the statute.
Senator Whitehouse. My time has expired.
Chairman Leahy. Senator Klobuchar.
Senator Klobuchar. Thank you very much, Mr. Chairman, and
thank you to both of you for being here. As I said during the
confirmation hearing for Attorney General Holder, I support the
extension of these three provisions. I think that they are
important.
I first wanted to follow up on what Senator Whitehouse was
talking about with the Lone Wolf provisions. Do you see given
the fact that it hasn't been used, are there some changes that
should be made to it to make it more usable?
Mr. Kris. It is hard for me to imagine, I mean, there are a
number of policy judgments involved in the Lone Wolf provision.
For example, it does not apply to U.S. persons. It would be a
major policy shift if you extended this thing to U.S. persons
as opposed to non-U.S. persons.
Senator Klobuchar. Agreed.
Mr. Kris. And I'm not advocating one way or the other on
that from where I sit today.
I think it is important to have this provision. The fact
that we haven't used it yet doesn't mean that we won't use it
or won't need it at some point in the future. As I said, I
think in the letter that we sent on September 14th to Senator
Leahy and in my testimony, in the age of the internet and
decentralized Al Queda, I think there is the possibility of a
person who is inspired by but not a member of an international
terrorist group or the possibility of someone who is a member
of a group but then breaks with the group for whatever reason.
Perhaps it is not sufficiently radical for his tastes.
In either of those two situations, the person would be
engaged in a national terrorism, wouldn't be any longer or ever
a member of a group and would be I think someone who we would
want to be able to cover. So I think we should reenact it and I
don't, or reauthorize it. I guess I don't have specific ideas
for changing it that I would advance on behalf of the
administration.
Senator Klobuchar. OK. Thank you. You started out with your
testimony saying that you're willing to work with Congress on
specific proposals and one of the reasons we have these sunsets
is so we can see if there is some improvements or changes we
can make.
But your testimony didn't address any possible changes.
Should we take this to mean that the DOJ has not found any
significant problems in either the structure or exercise of
these authorities that would warrant modification?
Mr. Kris. Well, I think what has actually happened is that
Congress has seized the initiative here. Senator Leahy has
dropped a bill, Senator Feingold and others as mentioned, and
so what we are doing right now is we are looking hard at those
bills and there are a lot of provisions in them, a very
complicated area of law. We are reviewing them aggressively and
trying to figure out whether the provisions that are suggested
there will work for us as is or perhaps with modifications.
So I think the dialog is joined because you have put
several provisions on the table for us to look at and we are
doing that.
Senator Klobuchar. Senator Whitehouse had also said--
through wire taps and sought authorization of wire taps on a
state level, county attorney level, and so I know how
complicated these minimization procedures are and what
protections are in place.
Do you think that the protections that we have in place are
sufficient to protect innocent Americans whose personal
information might be caught in either a roving wire tap or
Section 215?
Mr. Kris. I think the existing law does protect very well
and I think in part that is because of the diligence of the
FISA court which pays very careful attention to the way these
authorities are used.
That doesn't mean of course that they can't be improved.
There is a lot of different ways to build these statutes and
combine various elements and that is why we are open to working
with you without condemning the existing law.
Senator Klobuchar. And then Mr. Fine's testimony states
that the FBI has said that the department has dropped the new
minimization procedures for business records but these
procedures haven't been issued.
When do you think these will be issued, and could you
discuss how they might differ from the current minimization
procedures?
Mr. Kris. I am always reluctant to give a prediction about
the timing of a deliverable, but it does seem to me that we are
getting close. In terms of the content, I would be reluctant to
discuss that in an open hearing.
Senator Klobuchar. OK. In your review of the minimization
procedures, did you see any problems that deserve our
attention? Do you want to not discuss that either right now?
Mr. Kris. Yes, I think I should defer getting into the
possibly classified details of anything there.
Senator Klobuchar. OK. On the Lone Wolf provision that we
just talked about, and I will ask this as my last question. Do
you believe there is any gaps in the definitions? I want to go
back to that again, that we could change to make it more usable
that wouldn't inhibit any intelligence gathering.
Mr. Kris. We are really not seeking any expansions of the
definitions of foreign power or agent of foreign power at this
time.
Senator Klobuchar. All right. Thank you very much, Mr.
Kris.
Chairman Leahy. Thank you. Mr. Kris, I made a note that
many of us have had briefings on some of the aspects of the
classified matters that you're talking about. We have several
members of the, in both parties by tradition in the
intelligence committee on the Judiciary Committee for that.
If you feel as you look over your answers there are things
that you need to be answered in a classified version, we can
arrange to have that provided for Senators and cleared staff.
So if you feel that you are unable to give a full answer to
Senator Klobuchar's question and anybody else and wish to
follow up, please avail yourself of that and we will arrange
it.
Senator Franken.
Senator Franken. Thank you, Mr. Chairman. Mr. Fine, I am
going to ask you a question soon.
Mr. Fine. Okay. I'm waiting for it.
Senator Franken. First, Mr. Kris, I'm not a lawyer like all
the, my colleagues here now nor a careful lawyer like you
singled out. But I did some research and most Americans aren't
lawyers.
So I've got a question on the roving wire tap thing and I
think I understand why it is important because of the
terrorists and other people we suspect of being terrorists use
different phones, right?
Mr. Kris. Yes.
Senator Franken. Okay. And that's why it is there. But
under the Patriot Act, the roving wire tap provision does not
require law enforcement officials to identify the individual or
the phone or the computer that will be tapped, is that right?
Mr. Kris. No, I don't think so. The statute requires roving
or not that the government identify, provide the identity if
known or a description of the specific target.
Senator Franken. A description of it, but not the actual
name.
Mr. Kris. Not always the name, but you have to say
something about the specific target.
Senator Franken. Okay. That is what brings me to this
because they give you this when you get in the Senate. It is a
constitution, and I was sworn to uphold it or support it anyway
and protect it.
This is the Fourth Amendment. The right of the people to be
secure in their persons houses, papers and effect against
unreasonable searches and seizures should not be violated and
no warrants shall issue but upon probable cause supported by
oath or affirmation and particularly describing the place to be
searched and the persons or things to be seized.
Now, it seems to me, that is pretty explicit language. I
was wondering if you think that this is consistent with the
Fourth Amendment.
Mr. Kris. I do think it is and I kind of want to defer to
that other third branch of government. The courts in looking
at----
Senator Franken. I know what they are. Go ahead, sir.
Mr. Kris. The courts prior to FISA, prior to FISA every
Court of Appeals to squarely consider the question had actually
upheld warrantless foreign intelligence surveillance, that is
without an advanced court order. The Supreme Court had declined
to hold that a warrant was required in the so called Keith case
for foreign intelligence surveillance. So I think you begin
with that baseline.
FISA then by requiring advanced judicial approval goes
above and beyond what the constitution requires for this kind
of foreign intelligence surveillance. I do think there is an
argument and probably a good argument that the language that I
read to you before, that even if you cannot identify the
particular target but that you describe the specific target
that it would satisfy the particularity clause that you just
cited.
Senator Franken. Thank you. I want to get to Mr. Fine.
Mr. Fine. Thank you.
Senator Franken. You're welcome. When the FBI wants
documents for an investigation, it can either go to the FISA
court or it can get one of these national security letters,
right?
Mr. Fine. Right.
Senator Franken. And for national security letters you
don't need approval of the FISA court, right?
Mr. Fine. You don't need a court approval for a national
security letter.
Senator Franken. Okay. So I'm wondering what is to keep the
FBI from always using the national security letter. So let me
ask you, are national security letters now being used to get
around higher requirements of the FISA courts for formal
business records?
Mr. Fine. National security letters only apply to certain
types of information from certain providers. So it can be used
in those contexts. It cannot be used in other contexts.
So what limits it is the five statutes under which national
security letters are authorized which specify very clearly
where they can be used and where they can't be used. That is
why, for example, the importance of Section 215 orders because
there are certain types of records and things that can't be
obtained by national security letters that have to be obtained
by Section 215 orders.
Senator Franken. I'm not sure that was, I didn't
understand. Was that a yes or a no?
Mr. Fine. No, I don't think they are using it to get around
the law.
Senator Franken. Okay. Let me ask you, have they ever been
used to get around?
Mr. Fine. I think they have improperly used them. I don't
think it was intentional, that there were instances where we
know we can't get these records but we are going to use them
anyway. I think it was because of sloppiness, lack of training,
lack of supervision, lack of knowledge, and those are the
things that needed to be improved and rectified. That is what
we pointed out in our report. I think the FBI has made some
improvements in that area, but I think we need to still monitor
it and oversee that.
Senator Franken. Okay. That is just a concern of mine that,
you know, if they can be misused and have been misused, that
they will be misused in the future. That is a concern of mine.
If men were angels, there would be no need for government.
I think that's Madison. You know, if angels were the
government, we wouldn't, you know, need external controls. So I
worry about the next administration might not be as trustworthy
as this one or the last one.
Mr. Fine. That's why I believe there needs to be, as I
stated in my statement, aggressive, important oversight
mechanisms that don't rely on individuals that have controls on
this so regardless of the administration there will be ways to
verify and oversee and determine if they have been used
properly or not. That is properly our role and partly other's
role as well including national security and Congress for
holding these important hearings.
Senator Franken. Thank you. I have used my time.
Chairman Leahy. Thank you. I will submit for the record a
resolution to the Vermont Library Association a letter from the
Constitution Project as part of the Leahy/Cardin/Kaufman bill
statement submitted to ACLU and others.
I was sort of thinking, I was pulling out some notes here
as Senator Franken was asking this question. We have the FISA
authority, and I direct this to you, Mr. Kris. We have the FISA
authority to obtain tangible things such as library or medical
business records.
Then we have the Title 18 Authority to issue national
security letters. Now, you testified earlier and we have all
agreed these can't be issued based solely on conduct protected
by the First Amendment but the Inspector General found that in
one case the FBI was twice denied tangible things ordered by
the FISA court and the FISA court which normally grants these
turned them down because they said the underlying conduct was
protected by the First Amendment and there is no other basis in
which to issue an order.
So the FBI then just turned around and issued a national
security letter based on the exact same conduct protected by
the First Amendment having been turned down by the court they
went and did it administratively.
I think that is why you have a lot of Americans on the
right and left who are worried about intrusive and unchecked
government surveillance. We all want to be safe. We all want to
catch criminals. That is not the issue.
The issue though is each one of us is our own privacy. The
vast majority of Americans are law abiding Americans. If there
is, the material is picked up, they go to data banks and then
they can't get on an airplane, they can't get a job, they
can't, the kids can't get a student loan, and you know all the
horror stories.
We had a former longest serving member of this committee,
the late Senator Ted Kennedy was eight or nine or ten times
refused to go on one of the, an airplane or a flight he had
been taking for 40 years back to Boston because he somehow is
named on one of these lists.
So my question is, and I think this is what Senator Franken
was saying too, what do we do to ensure this sort of thing
isn't repeated? I mean, you talk about standards and whatnot.
How do you ensure that these standards are followed?
I mean, I know you follow them. I know the Attorney General
follows them. I know the Director will follow them. Well, how
do we make sure the agents out in the field follow them?
Mr. Kris. Senator, it is an excellent question and I think
a very trenchant one. I mean, I think there is a variety of
different interlocking methods that can be used to protect
against misuse or abuse.
The first is writing the law, setting the standards at a
certain level and that is something you can do through amending
the statute. The next is within the executive branch through
training, oversight by Mr. Fine's office, in some cases my
office, the National Security Division does oversight of the
FBI.
There are electronic systems, for example, for national
security letters. The FBI developed an electronic subsystem
that essentially ensures that all of the requirements are met
before a letter can be issued so we can develop internal
systems.
They have an Office of Integrity and Compliance as Mr. Fine
talked about that does oversight, and obviously congressional
oversight whether fueled by a sunset provision or just more
generally about the use of the authorities can provide an
effective check, and in some cases, the courts. So a variety of
different methods.
Chairman Leahy. Let me use one concrete. In the 2006 USA
Patriot Act Reauthorization, we required, and I helped write
this, the Attorney General to adopt procedures to minimize
retention and improper dissemination of private information
that was obtained by Section 215.
Going back to what I was referring to earlier about all the
material that is in data banks floating around there in every
one of us. Again, I know most Vermonters are somewhat concerned
about their privacy but I think they are in every state.
Minimization procedures are supposed to protect the
constitutional rights of all of us. But Mr. Fine, you found in
your March 2008 report these safeguards that everybody agreed
on, Republicans, Democrats, everybody else, minimization. They
were never put in place. The Attorney General simply recycled
the FBI's national security investigation guidelines, adopted
those as the interim minimization procedures you found were
woefully inadequate.
They didn't follow the statute. It is one thing to talk
about oversight and all that and the reauthorization, but the
statute is not followed and it is a concern. Now we have a new
Attorney General who followed up on your recommendation that
specific minimization procedures be developed and adopted. Do
we have those procedures now?
Mr. Fine. No, they have not been issued. As I pointed out
in my statement, they adopted these interim procedures that
were not specific that they believe that comply with the
statute, but we believe that there ought to be those specific
minimization procedures as contemplated by the Patriot
Reauthorization Act that do apply specifically to Section 215
orders and they have been in draft, they have been in draft for
a long time. We think they ought to be considered, finalized
and issued.
Chairman Leahy. I will, my time has expired. I will follow
up more on this. I just wanted to get the information. But if
it's not something you need, I want to get it out of the data
banks. I don't want it to cloud over me when I get on an
airplane or when my constituents do or when they apply for a
job or whatever else it might be.
I won't go into discussions of George Orwell and everything
else, but these things can be frightening. One of the great
things about this country is we have always said we'd balance.
Senator Sessions? I don't want material in there on Senator
Sessions that shouldn't be there.
Senator Sessions. Well, 1984 came and went and the
communists didn't get us. I'm glad to have been on the right
side of that battle.
The idea of keeping, maintaining confidentiality of an
investigation, Mr. Kris, can be exceedingly important in a
national security matter, a terrorism matter. From what I see
in the paper, and I don't have any inside information, I
believe the New York Times reported again today that in this
case, arrests have been made in the Afghan case, that the New
York police wanted to inquire of an Iman about the individual,
or an individual and asked him not to reveal that but asked him
for information about this person as they tried to figure out
what may have been happening.
What I understand from the reports is that he went straight
and reported it to one of the members connected to this
individual and that may have been, caused the entire
investigation to be altered and made perhaps more difficult to
identify people that are involved in a plot to attack and kill
American citizens.
Isn't that a legitimate concern and can't we do that based
on historic settled principles of American constitutional law?
Mr. Kris. It is a very grave concern when information that
compromises an investigation is leaked for the reasons that you
stated. It can have very profound effects on our ability to
investigate matters and I think existing law in the
confidentiality requirements and the secrecy requirements exist
precisely for that reason, in order to protect the secrecy of
the intelligence investigations because if they are made
public, they can be compromised.
Senator Sessions. And it hasn't always been recognized that
there is a huge difference between surveillance and
investigations of foreign powers, espionage and counter
espionage than investigations of American citizens.
Mr. Kris. There has historically been recognized in law and
in policy, yes, a distinction between security threats based
abroad, that is foreign security threats on the one hand,
domestic security threats, domestic terrorism and ordinary law
enforcement on the other.
Senator Sessions. I think Senator Franken's comments about
the Fourth Amendment, the right of the people to be secure in
their houses, papers, effects against unreasonable searches and
seizures.
So we have set up a system by which you have to go to a
Federal judge in a Federal case and submit extensive evidence
to justify a search. But I would also want to emphasize to my
colleagues and Senator Franken, records held in a bank are not
your records, they are the bank's records.
In a motel sign-in sheet that could be decisive in a case
is not the person who registered's records, it is the motel's
record. That is why the courts have always recognized that it
does not violate this court.
Now, when I was watching Senator Franken I talked about
Dragnet, Joe Friday and company. They used to go out to the
motel and get the records to see if old Billy checked in. And
they would give it to them. Now because of the laws and
lawyers, banks and everybody often demand subpoena or some sort
of official document before they will turn it over because they
don't want to be sued by somebody and have to defend the case
whether they win or lose.
But the principles are pretty much the same here. You have
a diminished expectation of privacy and records held by
independent third parties. Isn't that right?
Mr. Kris. I mean, I certainly agree under the Miller case
in particular that you do have a diminished expectation of
privacy in such materials and in some cases Congress has seen
fit to enact protections by statute by such material. For
example, ECBA is a major example.
Senator Sessions. Now, with regard to these nondisclosure
orders, which as a former prosecutor, these investigated drug
organizations, one of the most delicate, important matters is
when you start making arrests.
If you arrest some low level guy the first time you have a
bit of evidence, the rest of them scatter. They flee, they
cover their tracks. They disappear. That is even more critical
in a terrorism investigation to me.
But isn't it true that it takes the direction of the FBI or
his high level designee to justify, certify that a non-
disclosure order is needed, and isn't that one thing that the
Patriot Act did to ensure that it is not done willy nilly
without some thought and oversight?
Mr. Kris. Certainly with respect to Section 215 a
relatively high ranking person makes a submission and then the
court grants an order. With respect to NSLs, there is no court
order and the Doe decision from the Second Circuit found First
Amendment difficulties with that and suggested a so-called
reciprocal notice procedure that the FBI has adopted which I
think responds to that concern.
Senator Sessions. Well, as a Federal prosecutor, I remember
distinctly that we would issue subpoenas in FBI cases. The
Grand Jury was not advised until later. No Federal judge was
given any notice of it and the FBI went out and served it.
They were always irritated as the United States attorney,
Mr. Whitehouse, my colleague here, will know that the DEA could
get a subpoena to go out to the telephone company or the bank
and get records without asking the U.S. attorney's permission.
It is not a historic alteration of American criminal
jurisprudence to have a national security letter in my opinion,
and it is in an area that is very, very, very important to our
safety. Thank you.
Senator Whitehouse. Thank you, Senator Sessions. A question
for Mr. Fine. Your report when it first came out on the
national security letters----
Senator Sessions. Mr. Chairman, can I interrupt you just to
say that my Republican colleagues, at least three are in the
Finance Committee trying to do the health care thing. They
would have been here otherwise. I wanted to state that for the
record. It is a matter I think all of us take seriously.
Senator Whitehouse. It is for the record that we're trying
to do the health care thing?
Senator Sessions. They are trying to do a good health care
bill.
Senator Whitehouse. When the report came out, it dealt very
heavily with operational issues, failures out in the field of
people to adhere to the different regulations and statutory
requirements that had been put in place for the issuance of
those national security letters.
One of the points that I raised with the Director at the
time was that it also showed a very significant organization
and management failure. These national security letters were
issued pursuant to statutory authority that a lot of people in
this building had real reservations about. Republicans and
Democrats alike, and set a lot of markers saying all right, we
will give you this, we will trust you, but here is what you
have got to do.
In terms of the credibility of the Federal Bureau of
Investigation as an institution in this building, one would
have thought that there would have been somebody at the very
highest level reporting to the Director saying wow, we got this
new authority under very strict requirements and kind of on
trust in the confidence that we would follow those rules.
Therefore, to us as an institution it is really important that
we follow those.
I, as that imaginary person, am really, it is my job to
make sure of this so that when we come back for other
authorities later on, we don't get into the cry wolf problem of
hey, we trusted you last time, you completely blew it and now
you don't have the same trust with us any longer.
That struck me as being a significant institutional gap
that the FBI wouldn't have somebody in their leadership whose
job it was to basically protect that flank of theirs from their
own junior folks' lack of adherence to these different things.
In your review of this on an onging basis, are you
comfortable not only that at an operational level the FBI has
improved its adherence to the various protocols for national
security letters, but at the management level they have a
sensitivity to the importance of adhering to whatever the trust
is that Congress has given them and that there is more
management oversight of all compliance and adherence and
regulatory measures than this displayed?
Mr. Fine. Yes. I think that as a result of our report in
March 2007 the FBI was--by it and you are absolutely right,
there was an institutional failure.
They received these very important and vital authorities,
but they did not take measures to ensure that they would be
used properly and they just assumed that it would be used
properly.
When we came out with our report, it was very eye opening
for them and I do remember even at the time Director Muller
stating that clearly, stating he took responsibility in stating
to be honest that he was at fault for not putting in the
measures to ensure that these authorities that they are given
are used properly.
You cannot simply put out a memo and then think it is all
going to be followed in the 56 field offices of the FBI. You
have to make sure that they are trained constantly, that they
are supervised, that they are overseen and that they are
monitored and audited. I think they have made strides in that
direction. They made significant progress.
I mentioned the Office of Integrity compliance, they did
inspection division reviews, we have national security division
reviews, but I don't think being an Inspector General that you
can simply say that is going to solve all the problems and you
can stop doing it and we can rest assured. You have to
continually be vigilant on it and we are going to do a review
of the Office of Integrity Compliance.
Are they fulfilling their stated mission? Are they having
an impact? Or was this simply another office that was created
that is not being effective? We don't know that for sure. We
are going to determine that. But that is what the FBI also has
to do on an ongoing basis rather than simply assuming that the
measures they have implemented are going to be effective.
Senator Whitehouse. And it is your observation that as an
institutional wake up call, this incident did in fact have that
effect?
Mr. Fine. I think it did. I think it was a very, very
significant eye opening experience for them when they saw how
significant our findings were and that they hadn't found them,
that we found them and exposed them and they were not happy
about that.
Senator Whitehouse. Senator Franken.
Senator Franken. Thank you, Mr. Chair. Senator Whitehouse
did actually follow up with what I wanted to follow up with. I
just want to make it clear to Mr. Kris that what I was talking
about was the roving wire taps and when Senator Sessions
referred to it, I think it was Section 215. So those are very
different issues.
I understand that hotel records aren't the record of the
person, but when you are doing a roving wire tap and you're not
telling the FISA judge either the identity of the person or
exactly where you want to tap them, that just caused me concern
on the reading of the amendment in the constitution.
Mr. Kris. Yes. No, I understood absolutely the difference
there.
Senator Franken. Okay.
Mr. Kris. You have raised what I consider to be a
particularity clause in effect a problem that the warrant or
the order under FISA is not sufficiently precise and particular
in specifying exactly what is to be done.
I tried to give you an answer to that question, but I think
we----
Senator Franken. Okay. I just wanted to make it clear that,
because in response to Senator Sessions, I don't think you made
the distinction or made it clear that there was a distinction
between what I was asking and what Senator Sessions was
discussing.
Mr. Kris. Yes, sir. There is a very significant distinction
between Section 215 and FISA collection. I mean, what we are
talking about in a roving wire tap or an ordinary wire tap is
the collection of content of communications. That enjoys much
greater constitutional protection than do say business records
that are held by a third party absolutely.
Senator Franken. Okay. I just wanted to make that clear.
Thank you. No further questions.
Senator Whitehouse. All right. I thank the witnesses very
much for their testimony. We will take a minute or so to reset
the room for the second panel and then we will proceed with the
hearing.
[Off the record at 11:48 a.m.]
[On the record at 11:51 a.m.]
Panel II
Senator Whitehouse. The hearing will come back to order.
Why don't I begin by asking the various witnesses to stand and
we can get them sworn.
Do you affirm that the testimony you're about to give
before the committee will be the truth, the whole truth and
nothing but the truth so help you God?
Group Answer. I do.
Senator Whitehouse. Please be seated. We have a
particularly distinguished panel here this morning and I would
like to welcome all three witnesses. I am delighted that they
are here.
I think what I will do is make all three introductions
right away and then we will proceed across the panel beginning
with Ms. Spaulding.
Suzanne Spaulding is a Principal with Bingham Consulting
Group and of counsel to Bingham McCutchin in Washington, DC.
She has spent over 20 years handling national security issues
for Congress and the Executive Branch, including serving as
Assistant General Counsel out at the CIA, Minority Staff
Director for the House of Permanent Select Committee on
Intelligence, General Counsel for the Senate Select Committee
on Intelligence and as Legislative Director to Senator Arlen
Specter.
Kenneth Wainstein is currently a partner at O'Melveny &
Myers where he works in the white collar crime group. Mr.
Wainstein is the first Assistant Attorney General for National
Security serving in the Bush Administration. He also served as
Homeland Security Advisor to President George W. Bush and as a
United States Attorney for the District of Columbia.
Ms. Lisa Graves is the Executive Director of the Center for
Media and Democracy at the University of Wisconsin. She has
served as a Senior Advisor in all three branches of the Federal
Government and is a leading strategist on civil liberties and
constitutional protections.
She served as Chief Nominations Counsel to Senator Leahy
from 2002 until 2005. We welcome you back to the Judiciary
Committee. We welcome all of the witnesses. We are honored to
have you with us. Those of you who I have had the experience of
their work in public service, I am particularly grateful to
have you back here today. Thank you for your service.
Suzanne Spaulding.
STATEMENT OF SUZANNE E. SPAULDING PRINCIPAL, BINGHAM CONSULTING
GROUP, WASHINGTON, DC
Ms. Spaulding. Thank you, Acting Chairman Whitehouse,
Ranking Member Sessions and members of the committee. Thank you
for your invitation to participate in today's hearing on
Ensuring Liberty and Security.
Earlier this month we marked another anniversary of the
attacks of September 11th. In the 8 years since that indelible
manifestation of the terrorist threat, we have come to better
understand that respect for the constitution and the rule of
law are a source of strength and can be a powerful antidote to
the twisted lure of the terrorists.
In fact, after spending almost 20 years working national
security and terrorism issues for the government, I am
convinced that this approach is essential to defeating the
terrorist threat.
Given this national security imperative, Congress should
use this opportunity to examine more broadly ways to improve
our overall domestic intelligence framework, including a
comprehensive review of FISA, national security letters,
attorney general guidelines and applicable criminal
investigative authorities and I would encourage the
administration to do the same.
This morning, however, I will focus my remarks on the
sunsetting provisions that are the focus of this hearing.
Sections 215 and 206 both have corollaries in the criminal
code. Ultimately, however, important safeguards were lost in
their translation into the intelligence context.
Section 206, for example, was intended to make available an
intelligence surveillance, the roving wire tap authority that
criminal investigators have. This was an essential update.
However, there are specific safeguards in criminal Title 3
provision that were not carried over to FISA, requirements that
provided significant safeguards designed to protect Fourth
Amendment rights of innocent people.
Their absence in Section 215 increases the likelihood of
mistakes and the possibility of misuse. In addition, in the
criminal context where the focus is on successful prosecution,
exclusionary rules serve as an essential deterrent against
abuse, one that is largely absent in intelligence operations
where prosecution may not be the primary goal.
This highlights the care that must be taken when importing
criminal authorities into the intelligence context. And why it
may be necessary to include more rigorous standards and other
safeguards. I have suggested in my written testimony some ways
to address these concerns.
Similarly, Section 215 governing orders for tangible things
attempted to mimic the use of Grand Jury or administrative
subpoenas in the criminal context. However, criminal subpoenas
require some criminal nexus, FISA's 215 does not.
Moreover, the Patriot Act amendments broaden this Authority
well beyond business records to allow these orders to be issued
to obtain any tangible thing from any person. This could
include an order compelling you to hand over your personal
notes, your daughter's diary or your computer. Things to which
the Fourth Amendment clearly applies.
Again, in my written testimony I have tried to suggest ways
to tighten the safeguards without impairing the national
security value of this provision. In the interest of time,
however, I will move to the Lone Wolf provision.
Four years ago I urged Congress to let the Lone Wolf
provision sunset and I reiterate that plea today. The
administration admits that Lone Wolf authority has never been
used but pleads for its continuation just in case.
The problem is that this unnecessary provision comes at a
significant cost of undermining the policy and constitutional
justification for the entire FISA statute, a statute that is an
extremely important tool for intelligence investigations.
Legislative history, court cases before and after the
enactment of FISA including two cases from the FISA court
itself make clear that this extraordinary departure from Fourth
Amendment standards is justified only by the unique
complications and secrecy requirements inherent in
investigating foreign powers and their agents.
Unfortunately instead of repealing or fixing Lone Wolf,
Congress expanded it by adding a person engaged in
proliferation. There is no requirement that this activity be
unlawful or that the person know that they are contributing to
proliferation.
So someone who is involved in completely legal sales, for
example, of dual use goods, unbeknownst to her that are being
sold to a front company could be considered to be engaged in
proliferation and have all of her phone conversations and
emails intercepted and her home secretly searched by the United
States government.
As a former legal advisor to the intelligence community's
non-proliferation center and executive director of a
congressionally mandated weapons of mass destruction
commission, I fully understand the imperative to stop the
spread of these dangerous technologies.
However, there are many tools available to investigate
these activities without permitting the most intrusive and
secretive techniques to be used against people unwittingly
involved in legal activity.
In conclusion, let me commend the committee for its
commitment to ensuring that the government has all the
appropriate and necessary tools at its disposal in this vitally
important effort to counter today's threats and that these
authorities are crafted and implemented in a way that meets our
strategic goals as well as our technical needs.
With the new administration that provokes less fear of the
misuse of authority, it may be tempting to be less insistent
upon statutory safeguards. On the contrary, this is precisely
the time to seize the opportunity to work with the
administration to institutionalize appropriate safeguards in
ways that will mitigate the prospect for abuse by future
administrations or by this administration in the aftermath of
an event. Thank you.
Senator Whitehouse. Thank you very much, Ms. Spaulding.
Mr. Wainstein, welcome back to the committee. Please
proceed.
STATEMENT OF KENNETH L. WAINSTEIN PARTNER, O'MELVENY & MYERS,
LLP, WASHINGTON, DC
Mr. Wainstein. Thank you very much, Chairman Whitehouse. It
is very good to be back here again.
Senator Whitehouse. Good to have you back.
Mr. Wainstein. Chairman Whitehouse, Ranking Member
Sessions, members of the committee, thank you very much for
holding this important hearing and for soliciting our views
about the USA Patriot Act.
Today I want to discuss the three sunsetting provisions and
the reasons why I believe they should all be reauthorized. As
you well know, the Patriot Act was passed in late October, 2001
within a mere 45 days after the 9/11 attacks. Four years later
in 2005, Congress in its enduring credit undertook a lengthy
process of carefully scrutinizing each and every provision of
the Patriot Act, a process that results in the Reauthorizaton
Act that provided significant new safeguards for many of the
original provisions.
We are now at a point where the authorities and the Patriot
Act are woven into the fabric of our counterterrorism
operations and have become a critical part of our defenses
against what President Obama has aptly described as Al Queda's
``far reaching network of violence and hatred.''
This is particularly true of the three provisions that are
subject to reauthorization this year. First, the roving wiretap
authority. First, this provision allows agents to maintain
continuous surveillance as a target moves from one telephone or
communication device to another which is standard tradecraft
for many surveillance conscious spies and terrorists.
This is a critical investigative tool and it is one that
criminal investigators pursuing drug traffickers know their
regular criminals have been able to use for years.
It is especially critical nowadays given the proliferation
of inexpensive cell phones, calling cards and other innovations
that make it easy to dodge surveillance by rotating
communication devices.
While some have raised privacy concerns about this
authority, the reality is it has a number of safeguards built
into it to make sure that it is used appropriately. For
example, it is specifically limited to those situations where
the government can show to the FISA court that the target is
swapping cell phones or otherwise thwarting the government's
surveillance efforts and it requires the government to keep the
FISA court fully apprised with detailed reports whenever they
move their surveillance from one communication device to
another.
Given the narrow application of the statute, given the FISA
court's oversight of the roving surveillance and given the
absolute imperative of being able to maintain uninterrupted
surveillance on terrorists and spies who are in our midst,
there is no question in my mind that the roving wiretap
authority should be reauthorized.
Now, on to Section 215. Section 215 authorizes agents to
get a FISA court order that will compel businesses to produce
the same kind of records that law enforcement officers and
prosecutors have always been able to obtain to grand jury
subpoenas.
Prior to the enactment of Section 215, our national
security personnel were hamstrung in their effort to obtain
business records because the operative statute at the time
limited those orders only to certain types of businesses and
required a higher evidentiary standard than grand jury
subpoenas did.
Section 215 addressed these weaknesses by allowing these
orders to be used to get records from any businesses or any
entities and by squaring the evidentiary standard with the
traditional relevant standard used for grand jury subpoenas.
At the same time, Congress built in a number of safeguards
that protect against misuse and in fact make Section 215
significantly more protective of the civil liberties than the
grand jury subpoenas that are issued by the hundreds or
thousands by criminal prosecutors around the country every day.
For example, as Ranking member Sessions pointed out
earlier, unlike grand jury subpoenas that a prosecutor can
issue or his or her own, a 215 order must be approved by a
Federal judge on the FISA court. Unlike the subpoena authority,
Section 215 also does several other things.
It specifically bars issuance of an order if the underlying
investigation is focused solely on First Amendment activities.
It requires regular and comprehensive reporting to Congress and
it imposes a higher standard when the government seeking
library records or other sensitive records.
With these safeguards in place, there is simply no reason
in my mind that we should be returning to the days when it was
easier for a prosecutor to get records in a simple assault case
than it was for national security investigators to obtain
records that might help defend our country against a terrorist
attack. Section 215 should be reauthorized.
Last, the Lone Wolf provision. This provision allows the
government to conduct FISA surveillance on non-US persons who
engage in international terrorism without having to demonstrate
that that person is affiliated with a particular terrorist
organization.
When FISA was originally passed back in 1978, it
contemplated terrorist target of FISA surveillance was the
agent of an organized terrorist group kind of like the Red
Brigades, the kind of target that easily fit within the
statutory definition of an agent of foreign power.
Today we face adversaries that range from loosely knit
terrorist networks to self-radicalized foreign terrorists who
may not be part of a particular terrorist group but who are
nonetheless just as committed to pursuing the violent
objectives of international terrorism.
As a result, there is a risk today that we will encounter a
Lone Wolf foreign terrorist who cannot be identified with a
known terrorist group and therefore would not qualify for FISA
coverage under the original statute.
Congress solved this problem by passing the Lone Wolf
provision. It allows for FISA surveillance based on a showing
that the target is involved in international terrorism
regardless of affiliation.
Although as the government reported we have not yet used
the Lone Wolf provision, the threat posed by foreign
terrorists, no matter what their affiliation, is more than
ample justification for keeping this authority available for
the day that the government might need it.
Thank you once again for inviting me here today. I am
grateful for the opportunity to discuss the sunsetting Patriot
Act provisions and to lay out my reasons why I firmly believe
that they should all be reauthorized this year. I look forward
to answering any questions you might have. Thank you.
Senator Whitehouse. Thank you, Mr. Wainstein.
Ms. Graves.
STATEMENT OF LISA GRAVES, EXECUTIVE DIRECTOR, CENTER FOR MEDIA
& DEMOCRACY, WASHINGTON, DC
Ms. Graves. Senator Whitehouse, Chairman Leahy who is not
here, but who I was hoping to have the chance to address,
Ranking Member Sessions and the members of the judiciary
committee, I am very pleased to be here and I really appreciate
the invitation.
I have a full statement for the record but I was hoping
today for these opening remarks to focus on some of the things
that have come up today in the conversation.
Before I begin, I do want to say that I am pleased to
endorse the legislation sponsored by Senator Leahy and Senator
Cardin and Senator Kaufman, the Patriot Sunset Extension Act. I
think it is an important down payment on restoring civil
liberties.
I am hoping that other improvements will be made. I would
also like to endorse S. 1686 which is Senator Feingold's
Justice Act. I think it is a comprehensive approach to some of
the problems that have arisen over the last 7 years and I think
that bill which is proposed by Senator Feingold and Senator
Durbin is an important, has an important array of provisions to
restore civil liberties.
I want to focus my testimony today on Section 215 of the
national security letters. But before I do that, I want to
touch briefly on Section 206 and the particularity requirement
issue.
I would only say that it is a bit difficult to focus on
what the rules should be for roving wire taps in this context
when we haven't had the needed reforms to the broader Foreign
Intelligence Surveillance Act amendment Act, the FISA amendment
Act that was pushed through last year.
What we have is a circumstance in which an enormous array
of communications involving Americans, particularly
international communications, telephone communications and
internet communications are now accessible through blanket
orders or broad orders without individualized particularity
that are being approved by the FISA court.
So on the one hand we have an enormous array of information
about American content spoken and written by Americans that is
being obtained through the FISA Amendments Act powers. On the
other hand we have this roving wire tap authority that exists
and happens domestically that is distinct and yet to me not the
biggest issue compared with what we have in terms of the broad
authorities under the FISA Amendments Act. But I will save the
rest of that for another day.
Today I want to focus on Section 215, the issue of business
records, the issue of tangible things and national security
letters.
So a lot of the conversation today focused on this
presumption issue for Section 215 orders and whether something
is relevant. But what the law now requires is merely that the
government say that the records pertain to, that's the
relevance test, do these record pertain to a particular person
and that particular person can be someone who has contact with
a suspected terrorist or someone who is under surveillance.
So mere contact is a very low standard. There are 100
people in this room. There may be 1,000 people you have contact
with every year, probably a lot more than that. The government
doesn't have to show any particular suspicious activity. Based
on showing mere contact, they can have access to any tangible
thing about you.
So relevant to what? Relevant to merely a person and that
person doesn't have to be someone who is a suspected terrorist.
In fact, what the Justice Department said in a report in 2006
was that the Patriot Act authorized the FBI to collect, and
this is for national security letters which is basically the
same standard, for national security letters the FBI is
authorized to collect information such as telephone records,
internet usage, credit and banking information on persons who
are not subject to FBI investigations. This is according to the
Justice Department.
This means that the FBI and other law enforcement and
intelligence community agencies with access to FBI data bases
is able to review and store information about American citizens
and others in the United States who are not subjects of FBI
counter intelligence investigations and about whom the FBI has
no individualized suspicion of illegal activity.
That is why this issue matters so much. The 215 orders
cover any tangible thing. The national security letters cover
anything held by a bank, a credit card company, an insurance
company, a pawn broker, a real estate closing service, the
United States postal service and a casino among other
authorities.
So these aren't just narrow authorities that relate
particularly to internet service providers and banks. They are
broad authorities in the national security letter powers.
The ISP authority that came up in the context of the
questions for about the library, what happened there is the FBI
construed the library to be an internet service provider. If a
library can be an internet service provider, then anyone can be
an internet service provider. Any Senate office, any business
that maintains an internet service would be basically
accessible through these authorities. That is why they are so
broad. That is why they need further containment and that's why
the improvements that have been proposed by Senator Feingold
and by Senator Leahy are so important.
These powers go to the heart of what the power should be
for the government vis-a-vis the citizens of the United States
and we know that these documents, the documents that are
obtained through these powers are being put into FBI data
bases. The FBI data base, the investigative data warehouse now
has almost 1 billion records in it.
The Inspector General Glenn Fine said that the national
security letter powers were used to clear cases, to clear
people and close cases. But the FBI has said that even if you
are cleared or your case is closed, those records will be
maintained basically forever.
That is why your inquiry is so important and that's why I'm
pleased to be here today to talk about the needed reforms for
the Patriot Act authority that were expanded in 2001.
Senator Whitehouse. Thank you, Ms. Graves. I will call on
our distinguished ranking member first and then Senator
Feingold and then I will wrap up unless other Senators appear.
But first the distinguished ranking member.
Senator Sessions. Thank you. Mr. Wainstein, if records are
obtained by the FBI as part of a terrorist investigation, how
are they secured? Are they available to anybody that wants to
walk in and look at them? Or are they kept in a secure
circumstance regardless of what is normal criminal case or
terrorist case?
Mr. Wainstein. Well, sir, as you know in the criminal
context there are procedures in place and have been since--to
make sure that records that are secured by Grant Jury subpoena
are kept confidential because there are rules governing any
material that is collected in the course of the grand jury.
Senator Sessions. It's a criminal offense to reveal a grand
jury document.
Mr. Wainstein. Yes, sir, absolutely. Those procedures are
even more strict on the national security side where you have
classified information potentially and also national security
information which is even more sensitive in some ways.
Senator Sessions. Ms. Spaulding, you signed a letter back
in '05 to reauthorize the Patriot Act. Fundamentally you
support it. Have you changed your view about the Lone Wolf
issue?
Ms. Spaulding. Senator, I have always been opposed to the
Lone Wolf provision and I think what you are referring to is a
letter by a bipartisan working group that states very clearly
at the outset that what we were attempting to do was come
together on a compromised package, overall package, and that it
did not mean that all of the signatories agreed with each and
every recommendation.
Senator Sessions. I understand. But in fact you concluded
at the time it was worth passing even though you might have had
a disagreement about that part?
Ms. Spaulding. Well, I concluded at that time along with
the other members of that group that the overall provisions of
the Patriot Act had implemented some important updates and
should be reauthorized with some changes as we recommended. I
have always been opposed and continue to be opposed to the Lone
Wolf provision.
Senator Sessions. I don't think that letter you wrote said
it had to be taken out. But regardless, on the telephone you
indicated that on the 215 your telephone conversations could be
intercepted, is that correct?
Ms. Spaulding. No, Senator. I think I said your personal
notes, your daughter's diary and your computer, all of which
are tangible things susceptible to a 215 order.
Senator Sessions. Well, if your daughter is connected to a
terrorist organization, maybe that is important. I don't think
the FBI is out just gratuitously wanting to peruse people's
diaries. That's the only thing I would say here.
With regard to the 215, you say it could take your personal
records. You cannot under 215, can you, take somebody's records
that you own in your home or on your possession.
Ms. Spaulding. There is nothing in the statute that would
prohibit that. The Section 215 allows the government to compel
anyone to produce any tangible thing.
Senator Sessions. So you think it can replace a search
warrant?
Ms. Spaulding. According to the plain terms of the statute,
it does not have to be directed to a business or an entity. It
can be directed to any person to compel any tangible thing.
Senator Sessions. Mr. Wainstein, can you utilize a 215
request to obtain a target's personal records in his desk
drawer in his home?
Mr. Wainstein. You raise a very good question, sir. I think
the analysis is the same as on the criminal side. You know, the
person would have certain privileges to invoke, so there is a
mechanism for challenging a 215 order before the FISA court.
One of the bases for that challenge could be I have got a
Fifth Amendment right not to disclose the items that are
sought.
Senator Sessions. So on the 215 it is akin, I mean, it is,
you go to the court first before you can execute it, unlike the
national security letter which you can execute administratively
essentially?
Mr. Wainstein. Yes, sir. And as you pointed out, like any
administrative subpoena, and there are I think 300 different
types of administrative subpoenas out there for various civil
and criminal kinds of enforcement.
In none of those situations does the agency have to go to
the court. Then as we had both pointed out, the prosecutor
doesn't need to go to the court before issuing a grand jury
subpoena in a regular criminal context.
Senator Sessions. Do you say that there is an intellectual
problem let me say with defining an entity at war with the
United States, the Lone Wolf thing, as a single person as
opposed to a multiplicity? Intellectually can't an individual
be at war with the United States just as well as a group of
people?
Mr. Wainstein. Well, I think actually sort of stepping back
and looking at taking it out of the context of, the terminology
of a statute, looking at the purpose of the Lone Wolf
provision, it is exactly that. There could be a person out
there who is maybe working with international elements and is
inspired by international terrorists, terrorist groups but we
cannot hook that person to a particular group.
He could be just as dangerous and just as devastating to
America and Americans as somebody who is a card carrying member
of Al Queda.
Senator Sessions. The thing about these contacts and these
records that might be issued to this or that bank or telephone
company, the reality is that the person may be perfectly
innocent but they may be in contact with a terrorist.
Just the fact that they have contact can be proof of
something or prove they were in town, prove they were making
communications, proving that they were furthering their agenda.
Maybe it was to rent a U-haul truck to carry explosives in.
Those kinds of things can be just critical to an investigation.
I think we struck the right balance. I think there is a lot
of controls and limits and reviews over this. Senator
Whitehouse, I think that Senator Leahy and others, we went
through this weeks and weeks and it was not rushed through. It
was a number of months of intense effort.
Senator Feingold held our feet to the fire time and time
again on issues that he felt were important and won a number of
battles and lost some. I think it was not just thrown together
as a blind reaction to a terrorist attack. We did not just
ignore our constitutional principles and traditional law
enforcement principles. Thank you.
Senator Whitehouse. Thank you, Senator Sessions.
Senator Feingold.
Senator Feingold. Thank you, Mr. Chairman. The Senator from
Alabama, I really enjoy working with him, but I wish I
remembered those victories. I don't recall them, but it was an
excellent experience trying to achieve them.
I want to thank this panel very much. Ms. Spaulding, you
argued that the so called Lone Wolf authority undermines the
policy and constitutional justification of FISA and the
Congress allowed to sunset and I know Senator Sessions was
talking to you a little bit about that.
As you know, the Justice Department argues that the
authority should be reauthorized even though it has never been
used. Can you explain why the connection to a foreign power is
so important to FISA's constitutionality?
Ms. Spaulding. The reference to the foreign power and agent
of foreign power as underlined the justification for FISA comes
out of a Supreme Court case in which they were looking at a
domestic national security case and decided that the
traditional Fourth Amendment warrant requirements would still
apply there.
In a footnote they said that they were not ruling on cases
that involved foreign powers or agents of foreign powers
because of the unique complications and requirements inherent
in those kinds of investigations.
Clearly one of the key aspects of FISA that is beneficial
in intelligence investigations is the secrecy. It is also a
source of concern as you noted and as we have discussed this
morning. But the secrecy with respect to FISA electronic
surveillance versus the ability to use a Title 3 criminal
wiretap which is always an option for a Lone Wolf or anyone
else, it really goes to the sensitivity of the information in
the application for an electronic surveillance under FISA and
the sensitivity really derives from the information you would
put in that application, tagging this person to a group.
It is the information that you have in that application
with regard to the broader activities of a terrorist group that
make it so sensitive and different from a Title 3 criminal
application with respect to an individual.
That sensitivity simply isn't as pronounced when you are
going after a Lone Wolf, a single individual that you are not
tying to a group. Your application is going to contain----
Senator Feingold. So is the option of a criminal wire tap
order an adequate alternative in the Lone Wolf situation?
Ms. Spaulding. I think a Title 3 wiretap application ought
to be sufficient. I think if the government can make the
compelling case that if they determine there is actually
attachment to a group, perhaps Congress would want to consider
allowing a transfer then from a Title 3 to a FISA with the
secrecy. I think there are ways to work through that but I
think that Title 3 wire tap for these True Lone Wolf ought to
be sufficient.
Senator Feingold. Ms. Spaulding, last week I asked the FBI
Director Muller if the FBI had made any changes to the way it
handles the gag orders associated with Section 215 orders as a
result of the second circuit decision ruling that the gag
orders associated with the national security letters violate
the First Amendment. The section 215 issue was of course not
directly addressed by the court which was considering NSLs, but
the court's opinion certainly seems to have some implications
in the same context.
Yet Director Muller said the FBI has not made any changes
to the way it handles 215 gag orders. What is your view on the
applicability of the court's decision to gag orders under
Section 215 and does the FBI's position suggest that
legislative changes are needed?
Ms. Graves.
Ms. Graves. Thank you, Senator Feingold. I would say that
clearly the language in the second circuit's decision is
applicable. It is relevant to how these matters should be
addressed by the government.
To take a very narrow view of that decision which was in
the national security letter case and say because it deals with
Section 505 of the Patriot Act, even though the gag terms are
similar if not substantially the same, it shouldn't be applied
to Section 215 gag order is the wrong approach.
Even though they are not technically legally bound by that
precedent in that other context, as a matter of good
constitutional interpretation, they ought to consider
themselves bound by it and ought to change their approach to
handling those gag orders. So I think we definitely need a
legislative fix.
Unfortunately in this area and a number of areas as you
pointed out in your legislation, the administration, any
administration saying we are going to look into it or take care
of it is not adequate. We need strong rules and clear rules.
Senator Feingold. Ms. Spaulding.
Ms. Spaulding. I think that's right, Senator. The second
circuit was very clear about the constitutional basis for
requiring that the government make more than just merely an
assertion of the need for secrecy, for example, and I think
that is something that carries forward to Section 215 and other
contexts in which we have got gag orders in place.
Senator Feingold. I thank you and I thank the Chair.
Senator Whitehouse. Thank you, Senator Feingold. Thank you
for your determined and passionate and very thoughtful advocacy
in these areas.
Let me start with Ms. Graves' concern that the scope of the
215 authority is very broad in the sense that all the record
has to do is pertain to a person and all that person has to
have is contact with the target. It could be the butcher at the
market, it could be somebody who knows them at work, it could
be any sort of thing.
From a point of view of relevance, it would seem logical
that the record request in the pertaining to universe would
relate in some fashion to the contact. So if we went back to
Senator Sessions' example of the U-haul sales person or rental
person, if the contact with the target is that they came and
rented a U-haul, then it would seem that the logical relevance
of records in that U-haul operators universe would be to those
dealing with the rental of U-haul to that target.
But there is nothing that I see in the authority that
limits it to that. You could go after say school records of the
U-haul operator or medical records or phone records or DNA
records or any other such thing. I'm wondering given that very
broad scope have there been operational guidelines implemented
that prevent that sort of thing from happening in the
implementation of these statutes and of these requirements to
your knowledge, Ms. Spaulding and Mr. Wainstein?
Ms. Spaulding. I don't know the answer to that, Senator.
Senator Whitehouse. You know, sometimes you've got a very
broad legislative authorization but an agency that is
implementing it either through administrative rulemaking or
through internal procedure narrows it and specifies more
precisely in order to keep itself out of trouble, in order to
avoid an attack on the statutory authority that they're going
to do things in a certain way that is narrower than the full
range of their statutory authority.
To your knowledge, has that happened with this particular
question pertaining to relevance for somebody who has mere
contact with a target?
Mr. Wainstein. Senator Whitehouse, in regards to the 215,
the relevance of 215, off the top of my head I can't remember
particular internal FBI guidelines that would be a response to
your question.
But keep in mind a couple of things. One, the court, we
have to make the showing to the court. So built into the
statute unlike in the NSL----
Senator Whitehouse. Well, this falls within the presumption
that we talked about earlier, doesn't it?
Mr. Wainstein. Yes.
Senator Whitehouse. So once the government has made the
showing to the court, the statute says that it is presumptively
relevant, the court at that point is faced with an interesting
situation because the burden of going forward with showing that
it is not relevant has now shifted to a party that is not
present in the room, to an imaginary person or a non-existent
person.
So where you are the court and you have I think the very
awkward situation in front of you unless there is some
clarification which is the government is now, or the statute
has now moved the burden of going forward and disputing that
presumption to a party who does not exist and is not present.
So you are kind of stuck with the government's case.
I don't know, the statute would not be any different if you
simply said when the government shows you this stuff, you shall
issue. I mean, the presumption is a really false linkage. It
falsely implies that there is some flexibility there when in
fact it is a direct shot because there is nobody to actually
claim, to take up the burden of persuasion.
So it is not very reassuring to me to say that well, the
judge has a look at it because the judge may very well take the
view that hey, I'm stuck with this statutory presumption. If
there were somebody here, maybe I could decide between the two
parties, particularly if you believe a certain school of
judicial activism for the judge to take that step would be, you
know, activist because it is not something that is being argued
by a party.
The judge is now really hamstrung. So that is not a very
reassuring fall back for you, Mr. Wainstein.
Mr. Wainstein. Well, if I may at the risk of sort of wading
into the semantic discussion that you had with Mr. Kris. I do
understand your concern.
Senator Whitehouse. I thought semantics were important.
Mr. Wainstein. They are important. I understand your
concern about the word presumption and how it doesn't really
fit in the ex parte context.
It is usually used in the context of two people who are
adversarial and they are arguing one way or the other and--the
bailout. There is a presumption that someone is a risk of
flight or a danger to the community if they are charged with a
certain type of violent crime.
That is a presumption that sort of moved the needle over
toward the government in the argument as to whether a defendant
should be held prior to trial.
Senator Whitehouse. Correct.
Mr. Wainstein. You are very familiar with that. I believe
though that it is not inconsistent to apply that same logic to
the ex parte context because judges make ex parte decisions all
the time.
Let's say in the context of a regular search warrant in a
drug case, a judge looks at a search warrant and says OK, I
have to look for probable cause. Well, you know, on the meter
of burden of proof, probable cause is right here somewhere. So
the judge applies that.
Now, there is something to say, there is a presumption on
that that moves it over this way and presumably the judge moves
that internal needle over to the right a little bit.
So I see your concern about the use of the term that it
doesn't really fit. I don't think though that it is
inconsistent with sort of standard practice to have judges just
be told this is the standard you are going to apply and this
standard might change, you know, might rise or lower depending
on the existence with certain facts.
If I could just very quickly get to the substance here.
Senator Whitehouse. I'm just not sure that a legal
presumption is the technical way that you want to be doing
that. I will let you continue, but I just want to summarize. In
your testimony, it concludes in very, all or nothing fashion
that the roving wire tap authority 215 order authority and the
Lone Wolf authority should all be continued. They should be
reauthorized.
I don't know that there is any doubt anywhere in this
committee that that is the case, so I think the question more
is in reauthorizing them, are there further refinements and do
I take it from your testimony that it is your belief that there
are no further refinements that are appropriate or necessary in
any of these provisions?
Mr. Wainstein. No. I would not take my testimony to mean
that these provisions are perfect and they should not be
touched. I think that the core authorities though are
necessary, they are proven to be effective and under sort of
the current oversight regimes and with the limitations that are
currently built into the statutes, they are being implemented
in a way that is consistent with civil liberties.
Senator Whitehouse. I took you off the point that you
wanted to make.
Mr. Wainstein. That being said, if there are refinements
that could be proposed which would improve the safeguards
against misuse but not undermine their effectiveness, and I
have heard some ideas here about more public reporting, maybe
certain audits, this kind of thing which may very well be very
salutary improvements, I'm not objecting to that.
I guess the only point I wanted to make is to kind of
reiterate something that David Kris had said earlier when
talking about the use of NSLs and 215 orders. Keep in mind that
as he said, these are used very early on in an investigation
and they are often used to weed out the people who are
innocent.
But you are talking about the situation where contact is
just sort of a glancing contact and suddenly your records
because you happen to be the contacter and the known terrorist
is the contactee, your records are now in the possession of the
FBI.
In reality, we need that. We need to be able to do that
because we have a foreign spy and we see that foreign spy just
like we see any--novel sitting on a park bench with a fedora on
his head and somebody else walks up with a fedora and a trench
coat and sits on that bench and they look very suspicious at 2
in the afternoon, there is good reason to think that maybe that
is a drop going on. Some kind of espionage taking place right
in that park.
We might want to know something about that guy when he goes
and gets in the car and drives away. That's the kind of thing
that we need to do early on.
Senator Whitehouse. But then when he gets up from that
suspicious meeting and goes down the street and stops in and
buys a pack of cigarettes and then goes back out and walks down
the street, the poor fellow who just sold him the cigarettes is
subject to the exact same degree of scrutiny as the person
having the suspicious potential drop meeting and not only in
the context of the sale of the cigarettes or even more broadly
the operation of that store, but conceivably as to their
medical records as to their banking records or as to their, any
other kind of personal thing.
It just seems that there might even be an internal relevant
standard that would make some, you know, once you are in that
world, that the government should still have some burden of
showing what they want actually had some relevance to an
investigative strategy or theory that the government can
articulate before they just go wandering through the bus
driver's psychological records. I mean, who knows what it could
be. It is a big universe when it is any record pertaining to
any person who had any contact with the target. That's a huge
universe in this modern world.
Mr. Wainstein. True. Keep in mind however that this has to
be explained to a FISA court judge and so the FISA court judge
reviewing that factual statement as to what that connection
was, and if it is quite clear that it was an obviously innocent
day to day interaction, I think you're going to have some
questions from the FISA court judge.
Ms. Spaulding. Although the FISA court judge is limited to
applying the law as written as opposed to how the judge thinks
it should be written.
Senator Whitehouse. But presumptively the thumb is on the
scale in that FISA judge's calculation at that point.
Ms. Spaulding. The other issue that this raises that is
very important of course is that it places a very high premium
on having minimization procedures that are very rigorous.
Inevitably you are going to collect records that turn out
not to be relevant to your investigation and it is why it is of
such concern that the Inspector General found that the
minimization procedures for Section 215 were deficient, that
they still haven't been issued and that we really weren't able
to have a public discussion about those procedures today.
Ms. Graves. And if I may, Senator.
Senator Whitehouse. Please.
Ms. Graves. On that issue, the standard for national
security letters, the same rule applies in essence so long as
the records pertain to someone who has any contact without any
indicia of suspiciousness, always the hypotheticals involve
some suspiciousness. But the statute doesn't require that that
contact have any suspicious element to it.
So for the national security letters of which there have
been over 200,000 requests, those require no sort of statement
of fact that would show suspiciousness. It merely requires that
they show that the record pertain to this person who may have
had contact.
The national security letters have been issued in one
investigation. There were nine national security letters that
covered 11,000 people. This isn't just a hypothetical example
of what one degree of separation is. One degree of separation
might be 100 people. Two degrees of separation might be 10,000
people. It might be 100,000 depending on how far you wanted to
take it.
Of course they don't take it that far but the statute isn't
limiting in that way. So the question of requiring that there
be something that shows that the records are relevant that the
person has engaged in some sort of suspicious activity is
important.
When Mr. Comey testified before the House Judiciary
committee on this provision in 2005, he said even if you are
standing in line at the cafeteria downstairs, he wants to be
able to know everything about you and this power allows them to
do so. That is why this power is so far reaching and that is
why it must be contained.
Senator Whitehouse. Just one other technical point, and let
me work off, Ken, your example of the suspicious novel meeting
on the park bench. Let's say just for purposes of this example
that it had happened not just once but let's say twice, and so
there was reasonable grounds for some suspicion that the other
individual on the bench might be involved.
Would it not be the case that that other individual at that
point could not be designated a target and therefore the
universe expands suddenly to now anybody who has contact with
the second individual?
I mean, at what point, it is not clear to me at what level
of evidence or investigative support the initial designation of
who the target is to define the contact with university doesn't
grow so that a contact with person now is designated by the
government as somebody who has enough suspicion that now we
think that they are actually a target themselves and whoosh,
now all of their contact with universe gets swept into it.
Is it your view that if there were, the suspicion that you
indicated, let's just use those two examples. One meeting on a
park bench that has no apparent justification and it looks like
a John Lacaray drop type thing or even it being repeated a week
later at the same time.
At that point would the second person on the park bench now
be able to be designated under the 215 procedure as a target
such that anybody with contact with them would be subject to
the same 215 inquiries? What is that trigger?
Mr. Wainstein. There are rules. You are probably familiar
with the national security guidelines which lay out different
levels of investigation. There are full investigations and then
there are threat increases and the like that are sort of
lesser.
My recollection is that 215, in order to go to the court to
get a 215 order, it has to be within the range of a full
investigation. There has to be a certain predicate for the FBI
to open that.
Senator Whitehouse. Within that investigation the question
of who is designated a target versus who is a contact with a
target is one that is made administratively by the bureau as I
understand it. I don't understand the mechanism or the trigger
point at which somebody who is a contact with the target
becomes a target themselves.
That's a very small barrier, and it probably should be
given the complexity of these investigations, that you contact
with universe and they expand very rapidly.
Mr. Wainstein. And I think you have probably been briefed
over time as to the FBI's practices in terms of how many hops
out from particular known terrorists they go in terms of
analyzing relationships. I am not sure how much I can get into
at this point.
Senator Whitehouse. Probably not much.
Mr. Wainstein. But the bottom line is there is analysis
that goes on there. It is done administratively by the bureau,
but there is a relevance standard that has to be met when you
go to the FISA court or when you issue an NSL, administratively
it has to be satisfied. So the connection can only be so
attenuated.
I don't want to go beyond that though in terms of the hop
analysis. If I could just get one other point in.
Senator Whitehouse. Please.
Mr. Wainstein. Keep in mind one of the purposes of being
able to use these tools, in particular the 215, is to run down
a threat that might be about to happen. So you have a scenario
for instance where we might well get intelligence that a
terrorist is going to be boarding a train from DC to Charlotte
and blow that train up with a backpack.
The first thing they will want to do is find out who has
booked tickets on that train or an airplane, what have you.
That means you are going to issue process to the railroad or
the airplane, the airline and say I want to know everybody who
is in all those seats.
Well, obviously if it just one target that you are looking
for, you are going to be getting information about a lot of
people who do not fit within the parameters of that
presumption. That is not a tool we can deny investigators.
So if you were to make that, the three part presumption a
showing, a mandatory showing of relevance, you preclude the
Bureau from having the ability to use the 215 order to get
records in that situation which really could be debilitating.
Senator Whitehouse. Yeah, I think that would be
debilitating. I would think that the, at that point you have a
very different investigative nexus between the threat and the
evidence that you seek to secure than you do when the
evidentiary nexus is mere contact with.
There you actually have an investigative theory. It is a
very clear one and it makes perfect sense for the government to
pursue that. If when you get into this contact with theory, it
begins to seem a little bit unbounded.
But I want to thank all of you for your testimony. This has
been very helpful. I think we are in substantial agreement that
there are fine tuning refinements and a variety of audit and
accountability measures that are probably appropriate to the
statute but that the fundamental authorities are important to
keeping our country safe.
I thank you all for your testimony. The record of the
hearing will remain open for another 7 days for anybody who
wishes to add to it. But other than that, again my thanks to
the witnesses. We are adjourned.
[Whereupon, the hearing was adjourned.]
[Submissions for the record follow.]
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